Assange stalemate unworthy of Sweden

Per E Samuelson and Thomas Olsson write to SvD.

That a prosecutor can continue a preliminary investigation for four years and not question the suspect violates the demand for expediency. This is a strong reason to rescind the warrant against Julian Assange, write his lawyers.

Our client Julian Assange has been arrested in his absence for almost four years. He's spent the past two years at the Ecuador embassy in London, protected by political asylum. The London police guard the building day and night, but they can't enter the building. We have, time and again, demanded that the prosecutor [Marianne Ny] travel to London to question Assange. She refuses.

We've asked the Stockholm district court to rescind the warrant to break the deadlock. That would force the prosecutor to think differently. The matter will be dealt with in court 16 July.

Elisabeth Massi Fritz claims that anything but continued arrest would be a 'slap in the face' for her client and 'all women who are victims of sexual violence'. This is shabby jurisprudence at the cheapest possible level.

Massi Fritz is wrong in the crucial evidentiary matter of the case: no crime has been committed.

In August 2010, Assange had brief encounters with two Swedish women. Both were a question of consensual sex. Nothing else applies.

The women did not know each other beforehand, but they got in touch afterwards, culminating in Fritz' client going to the police accompanied by the other woman. But they did not go to the police to file complaints against Julian Assange.

The SMS traffic shows that Fritz' client only wanted advice on how to get Assange to take a blood test. She wasn't accusing Assange of anything, and she was shocked when she heard Assange was to be arrested in his absence.

So the truth is that neither of the women wanted to accuse Assange of anything, and that matches Assange's own version of events.

But there are other reasons to level serious criticism at Massi Fritz. Her position on political asylum is, to say the least, extraordinary.

Asylum is a fundamental human right cited in the UN Declaration of Human Rights (article 14). Ecuador expressly referred in their decision to the 1951 Geneva Convention.

Ecuador granted political asylum to Julian Assange in order to protect him from extradition to the US. This has nothing to do with the Swedish preliminary investigation. One need only read the asylum decision oneself. Obviously Massi Fritz hasn't done that.

Massi Fritz also makes a colossal blunder when she completely ignores the threat of the US and instead - completely in error - claims that Ecuador, 'a tiny South American country', tried to help Assange evade justice 'by fooling the world into thinking this is somehow all about the US'.

So let's lay out some fundamental facts.

On 5 April 2010, WikiLeaks released the Collateral Murder video showing a US helicopter attack on Baghdad civilians. Later that same year, they published 75,000 secret documents from the Pentagon concerning the US war in Afghanistan, 400,000 documents concerning the US war in Iraq, and over 250,000 US diplomatic cables, as well as 779 journals from the US base in Guantanamo.

One can see the reaction of the political pundits and powers that be in the clip below.

The clip shows very clearly how disastrously wrong Massi Fritz is. Alongside the Swedish preliminary investigation, there are very serious investigations going on in the US.

Bradley (now Chelsea) Manning was sentenced 20 August 2013 by a military court to 35 years prison, accused of having leaked over 700,000 documents to WikiLeaks.

There's yet another investigation into the 'founders, owners, or managers of WikiLeaks' being conducted in the Eastern District of Virginia, in Alexandria, and according to the US Department of Justice, the investigation is active and ongoing.

So Assange risks a very long prison sentence if extradited to the US, at least as long as the 35 years of Manning.

And that's why Ecuador granted Assange political asylum.

With that in mind, the demands of Massi Fritz (and the prosecutor [Marianne Ny]) that Assange turn up voluntarily and leave the protection of his political asylum are totally unreasonable. Julian Assange will use his political asylum as long as there's a risk he can be surrendered to the US in order to spend most of the rest of his life behind bars.

But the most damning thing about Elisabeth Massi Fritz and the prosecutor [Marianne Ny] is that they don't even try to resolve the stalemate. All they offer is more and more stalemate. Their demands could be summarised as follows:

Let's keep Assange locked away in the Ecuador embassy in London, let's stop him from using his political asylum, until he gives up and exits the building voluntarily. And in the meantime, what do we do? We do absolutely nothing.

It is our opinion that such a position is unreasonable and unworthy of Sweden as a nation of law. Such a position violates internationally recognised conventions. Such a position violates Swedish law.

Continued arrest violates the principle of necessity in that it can't ever achieve the objective (forcing Assange to Sweden); due to the political asylum, Assange has permission to stay there as long as he wants. Great Britain cannot enter and arrest him.

Great Britain can instead guard the embassy round the clock (at a cost of close to 7 million pounds sterling at time of writing). The embassy is guarded because of the arrest warrant. No warrant, no embassy guard. But Sweden gain nothing by this surveillance because they can't ever achieve their objective (forcing Assange to Sweden). The warrant has, however, serious negative consequences for Assange because it puts him in a situation tantamount to house arrest for the foreseeable future.

The warrant therefore also violates the principle of proportionality as the negative effects for Assange are not in proportion with what Sweden wanted to achieve by continued arrest.

The reason the prosecutor wanted Assange under arrest was - as she herself tells it - to apprehend him and have him brought to Sweden. But as we've seen above, that objective can no longer be achieved: Ecuador granted Assange political asylum. The prosecutor's request that the district court, despite this, keep Assange under arrest in his absence has, as its sole purpose, to pressure Assange into forsaking his political asylum. But personal pressure may not be used to coerce a suspect - that's a violation of the principle of purpose.

Assange has soon been under arrest in his absence for four years. He still hasn't been questioned. He still hasn't been notified of any accusations concerning Fritz' client. This despite the fact that we, time and again, have pointed out that Assange wants to be questioned, wants to clear his name from the accusations the prosecutor has been levelling at him.

That a prosecutor keeps a preliminary investigation open for four years without interrogating the suspect violates the demand for expediency in RB 23:4 and is a strong argument for rescinding the warrant.

The above is part of the judicial arguments which are the basis of our request that the Stockholm district court rescind the warrant.

Rescinding the warrant would of course not mean that the Swedish preliminary investigation would not continue. Just as we've pointed out for almost four years, we will still demand that the investigation be complemented with Assange's version of events. We and our client are available for such a questioning. All the prosecutor has ever had to do is contact us.

The Stockholm district court must, by rescinding the warrant, force the prosecutor to expedite the preliminary investigation in the only way possible: get over to London and question Assange.

THOMAS OLSSON
PER E SAMUELSON

(© and reprinted with permission from Assange in Sweden. For further documents in the new case filing, including the initial petition to the Stockholm court and a facsimile of Marianne Ny's response to the court, see here.)