Pursuit of Assange a bad look for the Swedish justice system

Greg Barns ABC Religion and Ethics 26 Jun 2012

In the case of Julian Assange, the prosecution has looked to be driven by legal or political agenda and an unhealthy desire to pursue a high profile individual on what are relatively minor charges.

In the case of Julian Assange, the prosecution has looked to be driven by legal or political agenda and an unhealthy desire to pursue a high profile individual on what are relatively minor charges.

Marten Schultz paints a glowing picture of the Swedish criminal justice system in which Wikileaks founder Julian Assange is entangled. But this is not the whole story.

While it is fair to say that Sweden is a democratic country which subscribes to the rule of law, the criticisms that Assange and his supporters make of the criminal justice system that operates are valid because the Assange case has revealed some disturbing aspects of this system in operation.

The first issue that gives cause for concern has been the conduct of the chief prosecutor in Assange’s case, Marianne Ny. She has pursued Assange with unusual vigour.

For instance, in September 2010 she overruled another senior prosecutor who had determined that Assange should not be arrested for questioning in relation to allegations by two women with whom it is said he slept. Then the New York Times reported on 14 December 2010 that Ny “asked British authorities to detain Mr. Assange and send him to Sweden for questioning about possible sex crimes, discussed the possibility of sending him to the United States.”

In 2007 Thomas Hammarberg, the Council of Europe’s Human Rights Commissioner, noted that the

“prosecutor represents the public interest, which means that he or she should promote the Rule of Law. With Rule of Law we mean something deeper than just the rule by law. The term includes a dimension of substantive justice, qualitative justice.”

It is arguable that Ny has not met this standard in the Assange case because of her background in what might be termed the sexual politics in Sweden. Ny is a long time campaigner for reforming sexual assault laws in Sweden so that they are more “pro women.” The lawyer who represents the woman Assange is alleged to have had sex with, Claes Borgstrom is on the same page as Ny when it comes to reforming the law in this area.

Perhaps this also explains why Ny has resorted to the horrendously expensive and heavy handed tool of an international arrest warrant in a case where the charges are, at best, quite a long way down the scale of sexual assault charges. If Julian Assange were Bill Smith, an Australian backpacker with no profile, would Marianne Ny be hunting him with such relish?

Then there is the fact that Ny has refused to interview Assange by telephone from the UK, despite his lawyers offering their client’s consent numerous times. This is extraordinary given that the Swedish government is a signatory to European Union’s rules on mutual legal assistance and has its own domestic law. The Swedish government’s own justice website affirms that a

“Swedish prosecutor or court can then request legal assistance regarding a hearing by telephone if an agreement has been concluded regarding such legal assistance under an international agreement with the other country or if that country otherwise provides such assistance.”

A legitimate question to ask of the Swedish criminal justice system, then, is this: how appropriate is it that the lead prosecutor in the Assange case is a political campaigner for sexual assault law reform? In matters such as this, the perception of objectivity and upholding prosecutorial standards is as important as the realty.

Interestingly, many Swedish lawyers are unhappy with the legal system in which they practice. According to a May 2011 report in The Local, a Swedish English language newspaper, a survey carried out by a legal publication in Sweden shows that 32% of Swedish lawyers answered “Yes” when asked if they agreed with criticisms made by Assange about the legal system in that country.

When Assange complained that suspects are denied access to information about the case against them, author and criminal defence lawyer Jens Lapidus agreed. Lapidus and his colleague John Akermark also endorsed Assange’s view about secret trials and the use of lay judges, many of whom are ex politicians. Lapidus and Akermark said that “proceedings are held behind closed doors more often in Sweden [than] in many other states governed by the rule of law.”

Marten Schultz observes that the “Swedish court system is characterized by foreseeability, fairness, humanism and high professional quality.” He may be right that this is so in many cases, although secret trials and preventing accused persons from knowing the case against them until they go to court is hardly fair or professional.

But in the case of Julian Assange, it is fair to say that the prosecution has looked, to the reasonable outsider, to be driven by a law reform or political agenda and a seemingly unhealthy desire to pursue a high profile individual on what are relatively minor charges. This is not a good advertisement for the Swedish justice system.

Greg Barns is a criminal barrister and National President of the Australian Lawyers Alliance.

http://www.abc.net.au/religion/articles/2012/06/26/3533558.htm

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