Backtracking a little from the UK’s Extradition Act (in the Extradition 1 post) it is necessary to understand that the origin of that legislation comes from the European Arrest Warrant (“EAW”) regime in turn based on the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States.(Pdf)
It is also necessary to understand that where interpreting legislation like the UK’s Extradition Act (that will be applied in Assange’s hearing) and if finding ambiguity or uncertainty, resort can be made–ordinarily toparliamentry second reading speeches in countries like Australia for example
—to examining, in this case, that very document of the Council Framework Decision.
The Preamble to the Council Framework Decision states in part:
The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present
extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of
freedom, security and justice….
This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European
Union (1), in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons.
Question 1: If objectively, the extradition is not for a prosecution per se, by the stated reason of Sweden’s prosecutor it is an “investigation”: is that a process of “punishment” of Assange based on his political opinions (and actions)? It is legally, as we would say, arguable.
Now a really interesting part is this:
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.
Note it says criminal prosecution, not criminal investigation. Criminal investigations, after arrest, it must be strongly noted are subjected to legislated limits on time. A person cannot and should not be arrested and held in custody for days, weeks on end purely for the purposes of investigation. That way abuse lies as we have seen in our historical common law UK heritage—Star Chambers and the like– and lately in despotic regimes such as Suharto’s Indonesia.
On arrest, police or prosecutors as a general principle should have a reasonable suspicion of wrongdoing with sufficient or enough evidence that the suspect can be charged with statutory (and/or common law offences). If after the legislated time for investigation has passed with the accused in custody (NSW Australia four hours plus timeouts)and there is insufficient evidence to justify a charge, then the suspect must be released.
The accused may be bailed initially on first court appearance, or later but eventually the standard criminal procedure of a criminal justice system operates: the prosecution serves a brief of evidence; defence subpoena material; prepares its defence ect and then a trial or hearing takes place some months later.
If it is the intention of Sweden, on extradition, to hold Julian Assange in custody, incommunicado, for weeks or months for purposes of investigation, before charging him, then that must fall well below the minimum standards of common law jurisdictions that this writer in particular, and many others around the world are familiar with.
If there is a hidden intention to give precedence to a US request for extradition then that may well be an outrageous story waiting to be told. While not wanting in any way to condemn Sweden’s criminal justice system from the outset, the forum shopping initiated by politician (and the complainants’ legal adviser) Claus Borgstrom who apparently approached Marianne Ny, (head of a special unit in Gothenburg 200 kilometres from Stockholm who reinstated the dismissed case) does not inspire confidence, to say the least.
If as Assange and his lawyers have indicated, that incommunicado detention is planned, that adds to a situation redolent or highly suggestive of extra curial punishment.
Question 2: Is the extradition of Assange for purposes of investigation an abuse of the EAW. I am of the opinion it is, but I could be persuaded otherwise as time goes on.
Note that extradictable offences must attract a 12 months sentence back in Sweden. Sexual assault, (used in my country in all such matters instead of the “r” word by the way) punishable in Sweden by at least 3 years custodial sentence shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant:
The Fundamental Rights above while referring to the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union must necessarily refer or even defer to the European Convention on Human Rights of which Article 6is paramount and will get quite an airing at Assange’s extradition hearing:
In the determination of his civil rights and obligations or of any criminal charge against him,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.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
* (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
* (b) to have adequate time and the facilities for the preparation of his defence;
* (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
* (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
* (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
Question 3: Taking the highlighted parts in order, will Assange get a “fair trial” in Sweden and will the presumption of innocence apply when millions of web hits associate his name with the “r” word?
One thing we do know is that he has not been served with a full brief of evidence in English, such brief containing the evidence and complainant statements against him.
If it is true, as some websites report, that the initial interview with Ms W was not recorded, was a “konceptförhör,” meaning a summary by police and then apparently (and again this is not iron clad proven fact) embellished afterwards (by actual complainant statements?) while the case was in the hands of Prosecutor Ny egged on apparently by politician Mr Claus Borgstrom, then a significant injustice has occurred.
This is because it becomes extraordinarily difficult for the defence to establish legally crucial, prior inconsistent statements when the first one is only a summary by interviewing police, which in law, is ordinarily inadmissable hearsay evidence.*
13 Extraneous considerations
A person’s extradition to a category 1 territory is barred by reason of extraneous considerations if (and only if) it appears that—
(a)the Part 1 warrant issued in respect of him (though purporting to be issued on account of the extradition offence) is in fact issued for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or
(b)if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions.
More on the subject of human rights and Assanges extradition in future posts and hopefully some case law on abuses of the EAW regime.
* Excepting as admissable evidence of a complaint only.
Submitted by Peter Kemp on Sat, 12/25/2010 – 13:31
The original works above are copyright. Apart from any use including fair use, under the Copyright Act Australia 1968 (Commonwealth), and apart from full attribution to Wikileaks Central with web link: no part may be produced by any process, nor may any other exclusive right be exercised without the express permission of the copyright holder Peter H Kemp.