Michael Kelley | Apr. 6, 2012, 5:29 PM
Assange has been under house arrest in Norfolk, Britain, for 486 days.
Any day now Britain’s Supreme Court will issue a ruling on whether or not the European Arrest Warrant (EAW) issued for WikiLeaks Founder Julian Assange is valid, a decision that will determine if Assange is extradited to Sweden to face allegations of sexual assault.
The EAW system increases the speed and ease of extradition throughout EU countries.
Assange, 40, had consensual sex with two women in Sweden in August 2010. He is accused of refusing to use a condom in one instance and having intercourse with the other women while she was not fully awake.
Assange denies both claims. He is currently under house arrest outside London.
Based on the “Agreed Statement of Facts and Issues” issued by the UK Supreme Court, the details surrounding both the extradition and sexual allegations deserve a closer look.
A quick recap of the extradition case:
—The EAW was by issued for Assange on December 2, 2010. He was arrested in London on December 7, 2010, and has been under house arrest since.
—According to the Agreed Statement of Facts and Issues, Swedish Director of Public Prosecution Marianne Ny is “requesting the arrest of Assange … to enable implementation of the preliminary investigation.”
—The extradition hearing took place before the Westminster Magistrates’ Court in February 2011 and a Senior District Judge ordered Assange’s extradition. Assange appealed to the High Court, which dismissed his appeal on November 2, 2011.
—On December 16, 2011, the Appeal Panel of Supreme Court granted Assange permission to appeal to the Supreme Court.
—The UK Supreme Court heard Assange’s case on February 1 and 2 of this year.
Assange’s lawyers have argued that the EAW is invalid for two reasons:
1) Assange has not been charged with a crime. Under EAW procedures a warrant must indicate a formal charge in order to be validated.
2) The “issuing judicial authority” of the EAW was the prosecutor (i.e. Ny), but “judicial authority” usually refers to an impartial magistrate, judge or court (or in Sweden’s case the National Police Board).
Geoffrey Robertson, an adviser to Assange’s legal team, began his written argument to UK Supreme Court with the sentence: “The notion that a prosecutor is a ‘judicial authority’ is a contradiction in terms.”
Furthermore, according to the EAW surrender procedures, “a judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender.”
So now the UK Supreme Court is making the decision. If it rejects the appeal, Assange would be extradited to Sweden, where he faces immediate arrest and detention without bail (unless the European Court of Human Rights agrees to consider his case and directs Britain not to hand him over until its proceedings are over).
From Sweden Assange could be extradited to the U.S. (with whom Sweden has a “temporary surrender” agreement in place), where he could face charges of espionage or conspiracy over WikiLeaks’ publication of hundreds of thousands of leaked classified U.S. documents.
In February leaked emails from the private U.S. security firm Stratfor revealed that a secret U.S. Grand Jury has had a secret Indictment against Assange since at least January 26, 2011.
The extradition case will not look into the substance of the sexual assault allegations against Assange (only if the EWA is valid), but the events leading up to the issuing of the EAW are informative to the case.
A quick recap:
—During a 2010 visit to Sweden, Assange had consensual sex with two women after he arrived on August 13. The women subsequently spoke and realized they both had intercourse with Assange “in circumstances where respectively they had or might have been or become unprotected against disease or pregnancy,” according to the Agreed Statement of Facts.
—On August 20 the two women went to the Swedish police, who took their visit as the filing of formal reports of “rape” of one woman (referred to as SW) and “molestation” of the other (referred to as AA). On-duty assistant prosecutor Maria Kjellstrand ordered that Assange be arrested.
—On August 21 Swedish chief prosecutor, Eva Finné, assessed the evidence and cancelled the arrest warrant against Assange, saying that she did not doubt the veracity of SW’s account but “the content of the interview does not support the contention that a crime has been committed.”
—On August 25 Finné determined that there was no crime committed against SW (i.e. the instance where Assange allegedly had sex with her while she wasn’t fully awake) and that the preliminary investigation regarding molestation of AA (i.e. refusing to where a condom) would continue.
—Claes Borgström, a lawyer and Social Democrat politician, subsequently took on the case on behalf of the two women and appealed to Director of Public Prosecutions Marianne Ny to revive the rape investigation. Ny, who does not normally act for the prosecution in individual cases, overruled Finné and resumed the preliminary investigation into allegations of rape against SW on September 1.
—On September 27 Ny ordered that Assange be arrested. Assange’s lawyers were informed on September 30, and by that time he had left Sweden. Ny stated that Assange “was ‘not a wanted man’ and would be able to attend an interview ‘discreetly’” despite the warrant for his arrest, according to the Agreed Statement of Facts.
—In October and November Assange’s lawyers offered a telephone or video-link interview (because telephone or video interviews with suspects abroad are lawful in Sweden and qualify for the purposes of a preliminary investigation), but the options were denied as Ny insisted that Assange be interviewed in person.
—After the first EAW was denied by UK’s Serious Organised Crime Agency (SOCA) because it “failed to specify the punishability in respect of each offence,” Ny submitted a replacement EAW on December 2. It was certified by SOCA on December 6, Assange was arrested on December 7 and has been under house arrest while he appeals the EAW.
Thus, by simply looking at the Agreed Statement of Facts and Issues — without discussing the Swedish gender politics involved or how the media have treated Assange — it seems that Assange’s argument that the EAW is invalid holds water because Marianne Ny seems more like an enthusiastic prosecutor than an impartial “judicial authority.”
WikiLeaks has already publicized what Stratfor watch officer Chris Farnham thinks about the whole situation. On December 6 (i.e. the day before Assange was arrested), Farnham sent an email to Stratfor CEO and founder George Friedman that was titled “Assange is off the hook…”
“BTW, close family friend in Sweden who knows the girl that is pressing charges tells me that there is absolutely nothing behind it other than prosecutors that are looking to make a name for themselves. My friend speaks rather disparagingly about the girl who is claiming molestation. I also think the whole rape thing is incorrect for if I remember correctly rape was never the charge.”
After being informed that Assange was being accused under Sweden’s loose definition of rape, Farnham replied:
“If it really matters I can look into it, but from what I am hearing that is not the case. That’s not to say that my friend is foolproof either. She knows nothing of law or politics, she just knows the girl in question and follows the news.”
Assange’s legal team has not been given copies of the complete case file because under Swedish law “the Appellant is only entitled to have access to this material once a final decision to prosecute is made,” according to the Agreed Statement of Facts and Issues.
The UK Supreme Court are expected to tweet their ruling any day now.