2011-06-11 The extradition appeal of Julian Assange: EU melting pots, ambiguities and human rights on trial.

The European Arrest Warrant (EAW) not for the purposes of prosecution argument.

Readers are likely aware that English speaking nation’s common law concepts/language do not necessarily have equivalents in Sweden, mens rea (guilty mind) being a major one lacking in Swedish sexual offences legislation for example (relating to lack of consent*). Julian Assange’s defence made substantial arguments at the extradition hearing that the EAW was not for the purposes of prosecution, that the use of the word “lagforing” in the warrant, meaning judicial process, was not sufficient to qualify as meaning a prosecution for the required purposes of an EAW.

As Judge Riddle wrote, in page 14 of his judgement (Full ruling here in Pdf.):

Under section 2(2) and (3) Extradition Act 2003 an arrest warrant must contain a statement that the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence….

What is required by section 2 of the Act is an arrest warrant which contains a statement that the warrant is issued for the purpose of being prosecuted. The question has been considered in a number of earlier cases, including Trenk, Vey, Mighall, Patel and Azstaslos. The defence argue that the EAW nowhere states unequivocally and without ambiguity that Mr Assange is sought for prosecution. The EAW was translated from Swedish into English by a translator appointed by the Swedish National Police Board. It begins “This warrant has been issued by a competent authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order”.

The English word “prosecution” is a translation from the Swedish “lagforing”. This is, says the defence, a fatal ambiguity. A qualified and experienced linguist and translator, Christopher Brunski said this in a statement: “The translation of the word “lagforing” as criminal prosecution in the EAW of 2nd December 2010 is too narrow. It is a general term which relates to the entire legal process and can be used in either civil or criminal context. It is something of an umbrella term that encompasses other stages and legal procedures that are more strictly defined in and of themselves. There are more precise terms for prosecution in Swedish, namely atala or aklaga, both meaning to prosecute or indict”.

So, says the defence, the warrant has not been issued specifically for prosecution. It has simply been issued for the purposes of legal proceedings. Nowhere in the warrant is the requested person referred to as an “accused”. Similarly there is no reference to him ever having been charged or indicted. Because the warrant is equivocal, the court is entitled to examine extrinsic evidence. Moreover this is an exceptional case because the prosecutor herself had made clear unequivocal public statements that no decision has been taken yet as to whether to prosecute Mr Assange and that the EAW has been issued for the purpose. Merely for questioning him further. However the defence did not accept that it is necessary to find that this is an exceptional case in order for the court to consider the evidence bearing on the subject.

I am satisfied that there is no equivocal statement or ambiguity in the warrant. The English version of the warrant states that it is for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. The warrant refers to offences, indicates the relevant provisions of Swedish criminal law; and identifies specific conduct against Mr Assange. There is simply nothing equivocal about the English version of the warrant. As for the Swedish language version, “lagforing” is the term used in the official Swedish language version of the Framework Decision. Mr Robertson says this is not to the point: it simply indicates that all Swedish EAWs that use this formula are ambiguous. I cannot accept that. When the Framework Decision was agreed the Swedish authorities would undoubtedly have considered it and understood its meaning. A request for the purposes of “lagforing” is a lawful request for the purpose of the Framework Decision and the Extradition Act 2003.

In these circumstances I am required to look to the warrant alone, and not to extrinsic evidence. It follows that the evidence I have heard and read on this question is not relevant to the decision I must make as to the validity of the warrant. I am sure the warrant is valid on the face of it.

Two points to be made on this.
1) When the Framework Decision was agreed, language policies of the EU would have mandated it’s translation from a “working language” (English French or German) into Swedish and therein lies the problem. As Judge Riddle presumes, without a shred of evidence before him I might add, the Swedes “would have considered” the meaning of the Framework agreement, however, this then overlooks the differences in legal regimes and the necessity for the Swedes to shoehorn the meaning of the original (assumed) EU English text into Swedish within the context of the Swedish legal system (alien in many respects to common law jurisdictions) and then in the case of the warrant, a translation back into English, and apparently an incorrectly translated warrant pointed out by Assange’s defence to Judge Riddle.

2)This raises further questions which exposes the EU’s language policies to charges of impreciseness and ambiguity (that counsel Geoffrey Robertson was pointing out specifically at the hearing related to the warrant). Which is the official EAW document, the one presented in Swedish or the translation? What is the legal position when the translation is demonstrated to be incorrect? Naturally one does not expect a UK judge to be proficient in the Swedish language but it would appear that an original Framework Agreement which in practice allows such ambiguities also takes no account whatsoever of the vast differences between common law jurisdictions such as the UK's and Sweden’s.

Sweden’s relevant criminal regime is set out on page 16 of the judgement, an information laid by prosecutor Ny on 4th February 2011:

7.According to Swedish law, a formal decision to indict may not be taken at the stage that the criminal process is currently at. Julian Assange’s case is currently at the stage of “preliminary investigation”. It will only be concluded when Julian Assange is surrendered to Sweden and has been interrogated.

8. The purpose of a preliminary investigation is to investigate the crime, provide underlying material on which to base a decision concerning prosecution and prepare the case so that all evidence can be presented at trial. Once the decision to indict has been made, an indictment is filed with the court. In the case of a person in pre-trial detention, the trial must commence within two weeks. Once started, the trial may not be adjourned. It can therefore be seen that the formal decision to indict is made at an advanced stage of the criminal proceedings. There is no easy analogy to be drawn with the English criminal procedure. I issued the EAW because I was satisfied that there was substantial and probable cause to accuse Julian Assange of the offences.

(By comparison, in common law nations like the UK and Australia, charges are laid at a much earlier stage. Police gather enough evidence by way of complainant statements - at a minimum - sufficient to charge a suspect in a lower court, and present that as prima facie evidence at committal proceedings where the strength of the prosecution case may be tested by cross examination. Upon committal to a higher court there is a long period of time for the defence to examine the brief of evidence (served before committal); find and interview defence witnesses and prepare a defence for trial.

Of note, the accused is not obliged to participate in an “interrogation” and has the right to remain silent on any questions relating to the alleged offences - although in the UK an adverse inference may be drawn by a jury from that silence. Depending on past criminal antecedents and the seriousness of the offence among other factors, bail applications are a normal part of procedure and appealable if refused in a lower court.)

Going by the English text of the Framework Agreement Article 1(1) (Pdf)-

1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

- there is no certainty that Julian Assange will be prosecuted, in her words Ms Ny says simply there was substantial and probable cause to accuse Julian Assange of the offences.

Geoffrey Robertson QC was right. There was ambiguity in the Swedish warrant, and the translated warrant was misleading and contradicted Ms Ny’s “information” but as I have demonstrated, that ambiguity stems from a system that tries (and fails) to put vastly different legal systems into an extradition melting pot along with fundamental language translation difficulties - that are created by those differences - and then expects that justice will always be served.

All these ambiguities would appear to be papered over by the Framework Agreement where it says in paragraph 10 of the preamble The mechanism of the European arrest warrant is based on a high level of confidence between Member States.

Some of my colleagues might say I have adopted a literalist approach to statutory interpretation to the Framework Agreement instead of a purposive approach. To this I would respond that the word ‘prosecution’ in black letter law or purposive law cannot mean 'preliminary investigation'.

It is also not necessary to add a presumption in statutory interpretation of not excluding the Human Rights Convention in interpreting the Framework Agreement, it’s already there, which leads me to a second major ground of appeal, but the conclusion I draw from all of this is firstly, I concur with Robertson that all warrants issued by Sweden on this basis are ambiguous and secondly that the “melting pot” purposive/interpretive approach taken by Judge Riddle in applying it to the case in hand may well be an error in law.

The European Convention on Human Rights Arguments.

Practically hidden within the European Convention on Human Rights
is one sentence in Article 5(2): Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him.(sic).

I assert that this puts the framework agreement establishing the European Arrest Warrant system in breach of the Convention, as it relates to the case of Julian Assange, as set out below, but first some background.

Article 5 sets out the rights of EU citizens and residents not to have their liberty taken away without proper process. In the case of a person arrested for criminal prosecution purposes, the circumstances of arrest and detention must be as a result of “reasonable suspicion” and the purpose of arrest and detention is to bring the accused “before the competent legal authority…”

As I have written before, the purpose of arrest and detention for the purpose of investigation only, is anathema to concepts of justice to such an extent that most common law jurisdictions proscribe it by regulating it strictly. For example in NSW Australia, such period of investigation is four hours not including time-outs. This protection in law for accused - and which I assert to be a human right - follows many bitter experiences over hundreds, if not thousands of years of despots incarcerating people on trumped up accusations for which ongoing incarceration was just “so necessary” for more and more “investigation.”

Note that Article 5 says nothing about arrest for the purposes of investigation.

Sequentially and logically, Article 5(2) applies after the accused has been arrested and in detention whereupon the competent legal authority must inform the accused “promptly” of the charges. Note ‘promptly’, which as an adjective means (per my dictionary at least) means: “done without delay, immediate.”

As readers will likely know already, the EAW extradition ruling of Judge Riddle stated in essence that the accusations were sufficient to qualify as a prosecution pursuant to and allowable within, an EAW application under the UK’s Extradition Act, enacted from the Framework Agreement.

Now while the Convention makes no specific reference to extraditions, it is not material on this point as to whether Julian Assange is in the UK on bail or, (if as anticipated) after an extradition he will be held “incommunicado” in Sweden (another breach of human rights – Ny’s “softening up” process): that he has not been, nor will he be informed (cannot be informed) “promptly” of the "charges" against him is for the simple reason that he has never been charged so far – only accused - and it has been explicitly admitted by the Swedish prosecutor Ms Ny that she wants the extradition for the purposes of investigation, and only after that Julian Assange may be charged.

By no means does the word charge equate to investigation and this I assert is a not only a breach of Julian Assange’s human rights, it also brings the EAW regime in its practice into disrepute and conflict with the HR Convention.

One of Judge Riddle’s specific findings was that Julian Assange would be held incommunicado upon extradition, ie no bail application apparently allowed, an implied breach of the Convention where the presumption of innocence applies. Denial of access to his lawyers in Sweden would solidify that as a breach, solidified again by Article 5(3) which states:

Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

Sweden’s apparent habit of automatic incarceration for alleged sexual offenders does not sit well with the Convention’s explicit provision for bail.

The real and most important issue of human rights has to be the secret trial issue, Article 6, Riddle again page 27:

However I have not been referred to any significant body of European Court cases that show that the Swedish practice in rape cases offends against article 6. Article 6 specifically envisages circumstances where the press and public may be excluded from all or part of the hearing. Apparently the practice in Sweden is long-standing.

Riddle appears to have forgotten the evidence of Brita Sundberg-Weitman - Swedish lawyer, former judge and distinguished jurist - on page 3 of his Judgement

The decision as to whether the trial would take place in private would be made by the court. However she knows of no case where a rape trial has taken place in public.

Article 6 states on this subject:

…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

Given that Sweden on the evidence at hearing appears to hold all such trials in secret, the fact that it might be customary in Sweden to do so is more than being at odds with the Convention. Protecting the private life of the parties is a double edged sword, what’s good for the goose is good for the gander so it is said, but the private life of the “suspect” in this case has been cruelly and prejudicially exposed as we know millions of times on Google, much less so for the complainants. Justice must not only be done but must be seen to be done, and any lame excuses by the Judges at a secret trial of Julian Assange in Sweden will be a travesty of justice and in breach of Article 6.

This to my mind is the major point of the appeal relating to getting a fair trial. That there is no European Court case law on Swedish practice of secret trials does not invalidate the defence’s submissions.

Riddle again page 27:

There can be no doubt that Sweden incorporates article 6 principles into its judicial system. Because that country has reached a different conclusion on the appropriate balance between privacy and open justice does not mean that their practice offends against article 6.

No doubt that Sweden incorporated Article 6? Reached a different conclusion on the appropriate balance between privacy and open justice? When that conclusion appears to have made ALL such trials secret? This has to be an error of fact on the evidence before him, (and whatever ‘judicial notice’ he may have taken of that common knowledge) also an error in interpretation of the Convention ie law.

The reality clearly is that Sweden has ignored Articles 5 (and 6) so far, and it remains to be seen how the secret trial issue is decided.

Conclusion: the EAW is a mess, not restricted to its melting pot mixture of irreconcilable legal systems and ambiguities which in the case of Sweden so far, allows it to flout the Human Rights Convention. Hopefully the Appeals Court will redress this unfortunate state of affairs and set a precedent for future extradition cases, a precedent that does not require Swedish citizens to be the appellants in the European Court of Human Rights.

There will undoubtedly be many other points of appeal, but I may well leave those to Mr Robertson.

*Update: "relating to lack of consent" inserted following an email discussion with Swedish citizen Mr Goran Rudling on 13 June 2011.

International legal standards

Mr. Kemp; From reading your various careful analyses ,I am certain that you are legally correct. However, as recent events have shown in the Bradley Manning case, the presumption of innocence is not guaranteed. I am ignorant of the practice of law, but there appears to be an advantage to power which over-rides the finer parts of the rule of law.

The EAW seems to hand such an advantage to Sweden because of incomplete structural definition in the treaty. Your request for precedents in the Swedish courts will prove relevant, if answered. One would hate to think that Mr. Assange will be extradited merely to avoid offending Sweden on a point of honour.

Australia's absence from the proceedings is nearly as bad as Canada's denial of Omar Khadar.

The Update

Mr Goran Rudling emailed me to say that I was wrong is saying that Sweden has no mens rea ie that it is an essential part of Swedish sexual offences legislation.

My email reply below:

Dear Mr Rudling

Thank you for your email.

In the Skeleton argument made by Assange's lawyers (page 88 http://www.fsilaw.com/news-media/news/28-julian-assange-case-papers/ ) it says:

Mr. Assange reserves the right to argue that his extradition is barred by reason of extraneous considerations, namely that the EAW has been issued against him for the purposes of prosecuting or punishing him for his political opinions (limb (a)) and/or that he will be prejudiced at trial, etc., by reason of those opinions (limb (b)), or by reason of his gender as a result of the 2005 amendments to the sexual offences laws in Sweden which deny to men the protection of mens rea.

The latter point will also be made in respect of the “extradition offence” issue (see earlier), in that these gender amendments preclude any assumption that the Swedish offence contains the requisite element of mens rea.

The requisite element (guilty mind/mens rea) or intent, relates to lack of consent - this is implied as all lawyers in common law jurisdictions will acknowledge.

IN NSW Australia and elsewhere in UK inherited legal systems the law on sexual assault rape is very simple and explicitly states the mens rea/fault/intent element, for example:


61I Sexual assault
Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.

Two elements have to be proven the conduct (actus reus) - the act of sex, and the mental element (mens rea.) The conduct is the act of intercourse, the mens rea element (in bold) relates to lack of consent, that the defendant knew (or was reckless) that the complainant was not consenting.

The indictment of an offender consequently reads:

That the accused, Mr X on 3rd March 2010 at (town/city) in the State of NSW did have sexual intercourse with Ms X without the consent of of Ms X and knowing that she did not consent.

By comparison in the European Arrest Warrant against Mr Assange, the wording of the allegations were as follows (and I assume the later indictment upon extradition will repeat them)

4) Rape
On 17th August 2010, in the home of the injured party [SW] in Enkoping, Assange deliberately consummated sexual intercourse with with her by improperly exploiting that she, due to sleep, was in a helpless state.
It is an aggravating circumstance that Assange, who was aware that it was the express wish of the injured party and a prerequisite of sexual intercourse that a condom be used, still consummated the unprotected sexual intercourse with her. The sexual act was designed to violate the injured party’s sexual integrity.

All this language relates basically to conduct, there is no explicit "lack of consent" mens rea which I understand you personally are campaigning for consensual elements to be introduced into Swedish law per :

It seems to me that there is a basic misunderstanding on this issue. In the UK, Canada, USA, Australia and elsewhere lawyers speak of mens rea or fault elements in sexual offences matters always as an issue of consent (or lack of as the case may be). Mens rea is synonymous in these matters with consent issues and further it is the only relevant mens rea issue, it is the second element (apart from the conduct) that a prosecution must prove beyond reasonable doubt.

If you are saying there is an implied mens rea element in any of the the wording of the allegations [ 4) Rape] above I acknowledge that "improperly exploiting" comes somewhat near to lack of consent but it is not clear enough to constitute lack of consent. ("improperly exploiting" could be used, for example in a consensual context between a couple in a relationship where implied consent continues on a day by day basis)

(As a minor point, that allegation in its wording is not neutral, implies guilt [contrary to the European Convention on Human Rights ie the presumption of innocence] by using words such as "injured party" - compare to NSW s61I above)

If you have copies of any official indictments of sexual offences that are issued in Sweden shortly before trial I would be most interested to read them. LIkewise any material that relates to mens rea issues in sexual offences law or caselaw in Sweden.

In the meantime I will amend my post to include the words "relating to lack of consent" into my post at Wikileaks Central, which from my point of view leaves no ambiguity on the matter, but of course you are entitled to disagree.

Again thanks for your email and I trust my position is made much clearer to you.

Yours Faithfully
Peter Kemp

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