Assange has made himself available to the Swedish prosecution from the beginning: he stayed in Sweden for 5 weeks waiting to be interrogated, and left Sweden after asking permission to do so from the Swedish Prosecutor Marianne Ny (which she granted).
The preliminary investigation into ’third degree rape’ was opened, dropped and then re-opened in quick succession over a space of ten days. On 1 September 2010 a prosecutor who heads one of four Swedish legal development centres made the decision to re-open the case. The centre takes on test cases, recommends changes to laws and policies, and ensures that certain cases are taken to the Supreme Court.
For over 500 days, the Swedish prosecutor has refused to progress the investigation by questioning Assange. Standard EU practice (Mutual Legal Assistance) allows the Swedish prosecutor to question Julian Assange and to collect forensic evidence. She has refused to do this and has failed to explain why. This is a point that the UK High Court judges challenged in the hearing (July 2011), on the basis that the Swedish prosecutor’s failure to explain her actions was undermining the EAW system, which is based on ’mutual trust’.
Evidence of a Biased Preliminary Investigation
In the February Hearing, all of the expert witnesses testified that there had been serious irregularities in the way Sweden’s preliminary investigation was being handled. Leaked documents from the Swedish police show the problems with the preliminary investigation. Failures in police investigations have been flagged as a serious problem in the Swedish legal system by several jurists, and by the Chancellor for Justice in his 2006 report, Wrongfully Convicted (see Rule of Law).
“While we cannot comment on the specifics of the case, we are extremely concerned at the apparent conduct of the investigators. Anyone concerned about free speech and human rights will be alarmed at any suggestion that the allegations against Mr Assange are being manipulated for political purposes.” – Index on Censorship chief executive John Kampfner
Observers agree that the conduct of the first interrogating officer, Irmeli Krans, biased the investigation against Julian Assange. But they differ on whether Krans failed to follow police protocol in the preliminary investigation out of loyalty to her friend woman complainant “AA”, or simply out of negligence.
Hypothesis 1: The interrogating officer was negligent because she failed to follow procedure.
In an interrogation involving sexual offences, standard police procedure involves recording the interview with the alleged victim. This procedure was established jointly by the National Police Board and the Swedish Prosecution Authority. The reason for this is that “Often in cases of word-against-word statements that are recorded word-for-word make it easier for the judge to adjudicate on the case in court” according to Seppo Wuori, former Director General of the National Police Board. In these cases, it is the first interrogation that is most significant: according to superintendent Bertil Sahlin, “it is often the first account that is closest to the truth, and it should be followed when we are talking about such serious crimes such as rape”.
Göran Rudling, witness in the February Hearing, has written to Sweden Versus Assange and is of the view that Krans is only a side figure in the case even though it is clear that her failure to record the first questioning of “SW” (on Friday 20 August 2010) has decidedly impacted the investigation to Julian Assange’s disadvantage.
When Krans returned to work on Monday 23rd of August, she had been taken off the case and was locked out of the “SW”file on the police’s internal computer system. She was then asked to alter the unauthorised interrogation (see below, ’Peculiarities about complainant SW’s interview’). The version of the police report that is in the public domain is the altered description of the third degree ’rape’ complaint.
There is evidence to suggest that she was not involved in deciding on the categorisation of the case as ’rape’ – there is even reason to believe that Krans disagreed with the ’rape’ categorisation: according to leaked emails between her and the supervisor Mats Gehlin, Krans was instructed to interview SW under the presumption that the investigation concerned ’rape’. This instruction came from the prosecutor, Maria Häljebo Kjellstrand.
Krans’ email reads: “About the verbal presentation for the prosecutor [over the phone which led to the arrest order], I have no further information other than what’s already been done by telephone by Linda Wassgren at some time during the interrogation [i.e. Krans’ interrogation with SW]. I don’t know what was presented as Wassgren doesn’t want to communicate with me. I was not given the opportunity to categorise the crime by the prosecutor [i.e., Krans was not consulted on what basis the allegation of ’rape’ was based before the arrest warrant was issued] but I was told it would be categorised as rape according to a directive given by the prosecutor [Maria Häljebo Kjellstrand]. (Email 23 August, 08:27)
In another email from Krans to supervisor Mats Ghelin (24 August 2010 16:35) Krans appears concerned about developments to do with SW’s complaint (the rape allegation had been advertised on the media and then cancelled): “With the risk of appearing difficult I do not want to have an unsigned document with my name circulating in DurTvå [the police’s computer system] space. Particularly not now when the case has developed as it has.”
Read in combination with Linda Wassgren’s memo on the decision to treat the women’s visit to the police station as a complaint and to classify it as rape (initially in both AA’s and SW’s case), it appears that Krans had no input into these decisions, and that the decision was already taken by the time she was informed that she was to conduct a formal interview with SW.
It may well be the case that Krans did not intentionally sabotage the investigation in failing to record the interview. However, Krans has shown an extraordinary lack of professionalism by making negative public remarks about Julian Assange on social networking sites (see these remarks in Evidence Destroyed) – particularly given the irregularities on the part of the prosecution during the first days of the preliminary investigation, and given that the investigation has not concluded. In any case, Krans’ remarks on Facebook show that the Swedish police authority does not have a proper social media policy. Her remarks have raised legitimate concerns about her neutrality in this investigation from the very start.
Hypothesis 2: The interrogating officer was biased because she knew one of the complainants, AA.
Social and political connections between AA and Krans
On 10 March 2011, after Assange had lost the hearing in the UK, Expressen published a story in English about the personal and political connection between Irmeli Krans, the police officer who led the interrogation of complainant SW, and AA.
Irmeli Krans’ connection with complainant AA was revealed in Flashback Forum approximately one month before it was published on Expressen. Expressen corroborated the connection through social networking sites. They also showed that Krans was posting negative remarks (see Evidence Destroyed) about Julian Assange, the suspect of a continuing investigation that was being led by her investigative unit.
Krans interviewed SW, one of the complainants, two and one half hours after the two women arrived at the police station. During the interview the arrest order for Julian Assange was authorised and confirmed by the prosecutor on 20 August 2010 (which was annulled the next day because the prosecutor considered that SW’s complaint did not constitute ’rape’ or any other crime).
Personal remarks made on social networking sites between complainant AA and Krans show that they were acquainted at least since April 2009, 16 months before the two complainants AA and SW visited Klara police station.
On the day of the complaint, interrogating officer Irmeli Krans’ shift ended at 16:00, but she stayed on after hours to conduct the interview with complainant SW.
Ullman vs. Krans
After posting the comment “… minor rape is what the solicitor calls it. Manjerk! :(” Krans was berated on her Facebook page by a senior member of Stockholm’s police board, Harald Ullman.
The Police Board is in charge of protecting the interests of the citizen. Harald Ullman replied:
“considering your job [police interrogator] I think you should have the integrity to abstain from your comments above. And now I’m serious. Our citizenry have to be able to have confidence that our police force is impartial and doesn’t jump to foregone conclusions.”
Complaint filed against Irmeli Krans
A Civil Liberties organisation, Rätssäkerhetsorganisationen, filed a complaint against Krans at the Parliamentary Ombudsman for Justice (JO). The complaint was made because Krans had failed to inform the investigative unit that she was acquainted with one of the complainants. The conflict of interest is likely to have contaminated the investigation (jäv), given that Krans was the first person to speak to complainant SW on record about regarding the most serious allegation.
On 23 May 2011, The Office for the Parliamentary Ombudsman for Justice (JO) dismissed the complaint against Irmeli Krans because the Prosecution Authority had already carried out their own investigation and concluded that there were no grounds for challengeability (ie interrogating officer Irmeli Krans did not contaminate the investigation, and there were no grounds for suspecting her for bias). The decision on Krans’ challengeability ’jäv’ is also available in English. Grounds for challengeability are circumstances that undermine the impartiality of the police officer (Code of Procedure, Sections 4, 13 § 10 and 7, 6 and 9 §§).
Interview methodology prejudices Assange
Interview method for the complainants
The questioning was written in narrative, reported form, a so-called ’concept’ report. The failure to record the interviews with the complainants is against recommended procedure. Prosecutor Marianne Ny has insisted on the importance of an early and recorded the first interview in cases of sexual offences, particularly because many of these cases have little or no supporting evidence and the court must rule in word-against-word trials.
Marianne Ny’s recommendation (2001, submitted as evidence in the February Hearing) is that the preliminary inquiry and particularly the initial statement by the alleged victim be videotaped, in order to get an understanding of what has happened as a whole – “how does the woman feel? What injuries does she have? Is she afraid?”
The problem of not recording complaints is that in the narrative report the nuance, tone, and accuracy of the complainant’s account is lost. In this case, the person reporting SW’s complaint was Irmeli Krans. Concerns have been raised about her neutrality as an interlocutor in the case because of her acquaintance prior to the complaint with complainant AA, and her subsequent negative public statements about Julian Assange in relation to the case.
Peculiarities about complainant SW’s interview
The interview with complainant SW (allegation 4, ’rape’) was not recorded. Questions, leading or otherwise, are not included in the police ’narrative’.
The questioning of complainant SW was amended and created as a new file in the computerised system (DurTvå) on 26 August. The new memorandum was signed by Krans, under the instructions of Mats Gehlin after an email exchange between them (see the leaked email exchange). Krans had been denied access to her own file in the system (DurTvå) and was taken off the case (see p. 12 of the leaked memorandum in Swedish, or the comment on 1 September by Irmeli Krans in the English translation).
Complainant SW’s interview had not been read nor approved by her, which is clear from the record. The interview was interrupted by Krans when it became clear that complainant SW could not continue because she was upset after being informed that an order for the arrest of Julian Assange had been issued for her complaint. Subsequently it has emerged that the original statement, and the one that has been released to the press differ significantly. Certain passages of the narrative account of SW’s testimony have been added. The two versions of SW’s testimony were discovered when a Swedish blogger published the original, redacted version that had been released to the press on 25 August 2011 (after the ’rape’ investigation was first terminated). It was then contrasted with the later version that has been widely published online.
The rest of the interviews
SW’s complaint was not the only one that was not recorded. Complainant AA’s testimony was conducted over the phone, and also reported in narrative form (konceptförhör), albeit by a different interrogating officer. All seven witnesses supporting the two complainants were also reported in the same narrative form.
By contrast, Julian Assange’s interrogation, as well as the interrogation of the two supporting witnesses Johannes Wallström and Donald Boström, were recorded.
Contamination of evidence
Contamination between complainants
Expert witness Sven-Erik Anhelm:
“extraordinary mistakes were made earlier in the investigation (which can be placed at the door of the police rather than Ms. Ny) because they appear to have interviewed both complainants together and allowed contamination of their evidence. This is not a professional way of making interrogations.”
A further problem with the first interviews is that the two complainants made the complaint together, and are likely to have contaminated each others’ story. SMS messages of the complainants prior to the police complaint aside (where there was allegedly talk of revenge and extortion), complainant AA has on several occasions stated that when she heard what had happened to complainant SW she believed her because something similar had happened to her. According to Donald Boström, who was in contact with complainant AA regarding the events before and immediately after the complaint:
“And then [complainant] AA rings again and says now we’ve been with the police and [complainant] SW told her story and, yeah because I sat there so I added a comment of my own. This is very ’word for word’ and as I remember her telling me. Uh, aha I say, and what was that comment. Yeah that comment was that I think [complainant] SW is telling the truth because I experienced something similar [complainant] AA says then.”
Contamination of witnesses
The timing of the interrogations may also have contaminated the witness statements, particularly as the first on-duty prosecutor, who issued the arrest warrant (while complainant SW was still being interrogated), disclosed Julian Assange’s identity and the allegations against him to the press only hours after the complaint was made. The reaction of the press was immediate, and very aggressive. Assange was described as a ’double rapist’ that same evening in the tabloid Expressen (see ’unlawful disclosure’ in Prosecution).
One of the complainants, AA, made several statements to the press on 21 August 2010 about the allegations and about Julian Assange. For the weeks and months that followed, a very negative Media climate in Sweden developed. Assange has been subjected to constant attacks on his person in the mainstream press and on the internet (#talkaboutit) since the disclosure by the prosecutor. Meanwhile, the nine witnesses were only interrogated long after the complaint was made:
Witness A (AA) +18 days of complaint
Witness B (SW) +19 days
Witness C (AA) +19 days
Witness D (SW) +24 days
Witness E (JA) +31 days
Witness F (JA) +31 days
Witness G (SW) +47 days
Witness H (SW) +63 days
Witness I (SW) +63 days
Witness J (JA?) +7 months
Witness K (JA?) +7 months
The number of witnesses for the complainants compared to Julian Assange is unbalanced. Several other people who were present on the day of the alleged assaults were not approached by the police, although two of them are known to have been interrogated in March 2011 (Anna Troberg and Rick Falkvinge of the Pirate Party, listed as witnesses J and K above).
In the interrogation of Julian Assange, the interpreter Gun von Krusenstjerna was not an authorised by the relevant public authority Kammarkollegiet.
There are different types of interpreters working for the courts:
certified legal interpreters
interpreters with some form of qualification
interpreters that have no qualification
In Sweden it is relatively common that unqualified or unaccredited interpreters assist in the courts and in criminal investigations. The case of the basketball star Andrew Mitchell was reported in local papers: criminal proceedings were postponed because the interpreter, who was translating into English, only had basic command of English.
Leaks to the media
The police has repeatedly leaked information to the press. The continuous disclosure of the questioning in the partial police dossier of the investigation, which compromised the right to confidentiality and privacy by the two complainants and Julian Assange, was given to the press almost immediately after the questioning (in some cases, excerpts of the transcripts appeared in the daily press the next day).
See Prosecution about the prosecution’s role in the unlawful disclosures of information to the press, and reactions by the Swedish press to the prosecution’s mishandling of the Assange case in the early stages of the investigation.
Recent evalution by Swedish DoJ on preliminary investigations
The Department for Justice released a report in May 2011 examines the failures of ensuring the right to due process in preliminary investigations. Proposes to changes in the law include measures that ensure:
- Objectivity by the investigating authorities during the preliminary investigation.
- Stricter rules about when to record audio/video
- If there is additional evidence (“sidomaterial”) in the preliminary investigation, it must be recorded, and added to the preliminary investigation protocol (this relates directly to the systematic obstruction of evidence by the police in investigations that has been heavily criticised in recent years, see Rule of Law).
What hard evidence is the prosecutor withholding? Dave Phillipsoffers a A Most Wanted List of Missing Items in the Julian Assange Case, guest featured in Proffessor’s blogg (March, 2012)
Acquitted Swedish doctor makes scathing criticism of ’ignorant and unprofessional’ Swedish police and investigators after suffering abuse and sleep depravation while under arrest (23 December 2011).
Stefan Lisinki, DN’s legal reporter, published an article on 3 November 2011 titled “A trial against Assange would be short” referring to the questionable evidence of the broken condom. The condom was submitted 12 days after the sexual encounter. It contains no chromosomal DNA from either complainant AA or Julian Assange. The article was published in the newspaper DN, but only in print. A scan of the article (in Swedish) is available here. Extracts from the article:
“… what has been leaked so far from the investigation shows that the evidence against Julian Assange is far from straightforward. The broken condom has been submitted to strengthen the claim that Julian Assange purposely broke the condom during sex, despite the woman’s wish for protected sex. But the condom lacks DNA traces entirely, and it will be difficult to prove that a person broke it on purpose.”
’Overlooked evidence in the Assange trial’ by Bella Magnani, 6 November 2011
- Rudling is critical of the motivations behind the complaint, the destruction of evidence favourable to Julian Assange by complainant AA, and of Julian Assange’s challenge of the extradition warrant (because he argues that Julian Assange would be exonerated).
- The analysis should be read in the context of lawyer Björn Hurtig’s witness statement, which explained that assurances that questioning would occur discreetly were voided after police and press attempted to make a broadcast arrest at the talk that Julian Assange had been programmed to attend on 06 October 2010. The analysis is also challenged from a legal standpoint by Peter Kemp’s response.
Witness Göran Rudling’s analysis of the investigation: Sex, lies, no videotape and more lies. False accusations in the Assange Case, in English (05 July 2011).
Peter Kemp’s response to Göran Rudling’s analysis.
Rixstep: Irmeli Krans
Vinden viskar mitt namn (blog in Swedish by a veteran Swedish journalist): Irmeli Krans doesn’t like Flashback Forum and she doesn’t like Assange
Washington Post – Swedish police under scrutiny in Assange case
Bad interpreters threaten Sweden’s Justice system – article in NT (in Swedish)
2010 report by the Swedish National Courts Administration regarding the use and quality of interpreters in court proceedings
Expert witness Brita Sundberg-Weitman
Expert witness Sven-Erik Alhelm
Witness statement Björn Hurtig
Witness statement Göran Rudling