Assange Affair: Marianne Ny Tried to Hide Her Shortcomings

After almost seven years, Marianne Ny has finally closed the preliminary investigation on Julian Assange, an investigation that should never have been reopened in the first place, after it was closed back in 2010 by an experienced prosecutor.1

The reason for my claim is very elementary: there is no evidence, and then one should not carry on an investigation.2

Assange was arrested in absentia in November 2010 and turned himself in to the police in England in December the same year.3

Before 2015, Marianne Ny had done essentially nothing with the case, as she insisted it was necessary to interview Assange in Sweden rather than in England. In conjunction with the appeal of the arrest decision, the Swedish courts, however, told Marianne Ny that she must move the investigation forward.4

First in 2015, once the case had been in the Swedish supreme court, did Marianne Ny change her mind, and at the end of 2016 Assange was interviewed in London. Translating the interview took six months, very much in line with the passivity that's hallmarked this investigation.5

'A Few Things'

At her press conference 19 May this year, Marianne Ny struggled to her utmost to make it look like she'd done her best without previously being able to reach a decision. This is not true, but there's a great risk that she's succeeded in convincing some people through her use of biased and distasteful statements. Therefore it's important to point out a few things.

At the press conference, Marianne Ny motivated her decision by stating she'd realised that the ruling to extradite Assange to Sweden could not be executed for the foreseeable future, a condition for due process.

But she should have realised this, at the very latest, in August 2012 when Assange was granted asylum by Ecuador. If she'd closed the investigation back then for that reason, she'd not be open to as much criticism as she is today.

Marianne Ny has at the same time claimed that it's not possible to serve Assange with notice of suspicion, and that she can't count on Ecuador's permission. This sounds rather curious, but if we assume it to be true, then it's a complication she should have been aware of a long time ago.6

Through her choice of motivation, Marianne Ny is implying that Assange is guilty of a crime and that it's only practical circumstances that prevent prosecution. This interpretation of Marianne Ny is bolstered by noting that Ny commented that, should Assange return to Sweden, he may be arrested, the investigation reopened.7

It would have been more tasteful if she'd admitted that no crime had been committed, something most people with criminal court experience will conclude. Then it would have been clear that Assange is to be regarded as innocent, something that's otherwise the case with anyone not convicted.8

To let a preliminary investigation, with obviously dubious evidence, wear on for almost seven years: this violates all rules of proportionality. Marianne Ny referred to arrest decisions in her press conference as proof that her behaviour's been defensible and sanctioned by the Swedish courts.

But that's not how we should see it. An arrest requires less suspicion of crime than a conviction, as everyone knows. And in this case, it wouldn't have been out of line if Marianne's request for the warrant had yielded the court decision 'request denied - no probable cause'.

But once someone is detained, a lot is needed to rescind a warrant, as long as the prosecutor can keep citing her need for further investigatory procedures.

And in the Assange case, the Swedish courts have been all too lenient towards the passivity of Marianne Ny. But this leniency is not something to be seen as an approval of Ny's lame investigation methods.9

With respect to the court statements in the matter, it's very clear that if Marianne Ny hadn't closed the investigation now, one of the Swedish courts would have finally quashed her warrant. Marianne Ny's time was up.

Laymen have intermittently asked the following question: should one do as Assange and avoid due process? The answer is an unequivocal 'yes'.

For it is the prosecutor (and the police) who bear full responsibility for the investigation. The suspect has no such responsibility in that context. I could possibly understand those who'd find this revolting - if it had been about a case with convincing evidence. But the Assange case is about an investigation that should have been (and once was) closed right from the beginning.

What would have happened if Marianne Ny had suddenly, openly, and honestly accounted for how she really conducted her investigation, and why she'd really now closed it down? Well yes, that would have left her totally unmasked and exposed as incompetent.

Marianne Ny's press conference was solely and exclusively an attempt to distract the public eye from her shortcomings. Unfortunately, I think she's succeeded to some extent. Too many questions remain, questions Marianne Ny was thereby able to avoid.

Marianne Ny's preliminary investigation of allegations against Julian Assange meets stringent requirements to be called a travesty of justice. It's remarkable that a prosecutor, working in such an exalted position, should mismanage an investigation in such a manner, and it's further remarkable that Prosecutor-General Anders Perklev let this happen.

Marianne Ny's behaviour throughout this case has not only been devastating for the Prosecution Authority, but also added to a growing global negative image of Swedish jurisprudence.10

A Few More Things

1 That experienced prosecutor is Eva Finné who, after reviewing the case files, closed the investigation the day after it had been opened, stating 'I think the girl was telling the truth, but the event she described is not a crime'.

2 The full case dossier, as submitted by Marianne Ny to the Stockholm District Court 18 November 2010, was exactly what was translated and later used by the British court in Belmarsh. As anyone who takes the time to study that dossier can see, Eva Finné is correct, but it's highly unlikely the Stockholm court even bothered to open the dossier, much less review it. Nonetheless, it was their issuance of an arrest warrant which gave Marianne Ny the chance to apply for a European Arrest Warrant (EAW) and the subsequent Interpol Red Notice.

3 This is a matter that works all too nicely in the Swedish language, where many people still believe Assange was somehow 'on the run' and was 'apprehended' by the police in the UK. Anyone - other than the media - who needed to know Assange's whereabouts, such as a certain Swedish prosecutor, could easily have known. This is something Marianne Ny and the others in her office were aware of, despite their claims to the contrary. Assange was staying at Ellingham, ramping up for Cablegate, even before his case and the question of bail came to the British courts in December 2010.

4 What are not mentioned here, undoubtedly due to website space limitations, are all of Marianne Ny's shameless prevarications over the years, how she once claimed (to TIME) that it was illegal to conduct questionings abroad, how her case got mixed up in Carl Bildt's foreign ministry, and so forth and so on and so forth and so on.

5 Not mentioned here, perhaps for the same reasons cited above, is how Marianne Ny managed to deftly botch an earlier opportunity for a questioning, and thereby let the statute of limitations for another part of the case, that of Anna Ardin, expire, although some people believe this was intentional, as the only 'hard evidence' in the entire affair concerned how Ardin faked an unused torn condom, an felony offence in Sweden which carries a long prison sentence, and a distraction from the political narrative Marianne Ny was intent on promoting.

6 Assange counsel Per E Samuelson has laughed this off, assuring that there are ways if Marianne Ny so wished, and he reminded the Stockholm District Court in his latest petition that Marianne Ny had denied him access to his client Assange for the questioning last November, and to this day refuses to explain why, and that the Ecuador attorney brought in to assist Assange, who speaks neither Swedish nor English, submitted a sworn affidavit in Spanish on what really happened those two days in November, a document Marianne Ny refused to let the officials at Sweden's foreign office translate and enter into the case protocol.

7 Marianne Ny's great fear, when formally serving Assange with notice of suspicion - delgivning in Swedish law - is that she must, from that exact moment, open, disclose, and share all the materials at her disposal for arriving at such a decision. This would have been something Marianne Ny couldn't permit, and for several reasons. One: she had no case. She had the same case as Eva Finné, and Eva Finné knew there was no case and said so, and closed it. Two: Marianne Ny's materials included the infamous SMS messages, which several legal experts have gone on record to state make the case 'moot'. Marianne Ny fought tooth and claw to prevent these messages from seeing the light of day. Assange's attorneys petitioned that the messages be entered into the court records, Marianne Ny understood the implication, and swatted the petition down. Assange's attorneys underwent memory training so they could accurately remember what they'd seen. Marianne Ny had threatened an earlier attorney with disbarment if he copied out the messages - a bluff on her side, but the intent and desperation were clear. (There's still a necessity to see those messages - all of them.) Had the world seen what Marianne Ny really had (and ostensibly did not have) then Marianne Ny would have 'stood naked' - completely exposed - for the world. Therefore it's highly likely that Marianne Ny 'engineered' events in November 2016 to force the Ecuadorean attorney to correctly recommend Assange not accept being served (under those specific circumstances, circumstances which Marianne Ny created). Devious to be sure, but not much more so than the way she allegedly squirmed out of the Ardin trap when her people were sent to London a year and a half earlier, as the statute of limitations for that part drew closer.

8 But such an admission would have made Marianne Ny look the fool. Even Sweden's chief supreme court justice declared it a 'mess'.

9 The first ruling, in the Stockholm District Court, way way back in time now, was prepared and ready for public dissemination within minutes of the hearing's final closing arguments. There was no time for a conscientious magistrate to rule that fast. The ruling was simply a 'rubber stamp', prepared before anyone had even turned up to present their case.

10 It's interesting how Rolf Hillgren ends his piece: by citing damage to Sweden's 'image'. The concern of anyone worrying about protection by and from 'the law' should be how the fundamental principles of law and justice are stomped and trampled on. Sweden is not a country lacking in egregious examples of such cases. Given time, given a sudden and unexpected honesty from Sweden's duckpond media, the case of Assange in Sweden will some day be regarded as the biggest and scariest ever.

Translated with annotations from the op-ed by Rolf Hillegren for Dagens Juridik.

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