In keeping with Swedish judicial processes in the Assange case, the ruling did not come unattached from controversy. According to Assange's lawyer Per Samuelson, "We are [...] critical of the Supreme Court's handling [of] the case. This decision has been taken without letting us close our argument." Apparently, the court's decision was based solely on the documents filed by Samuelson to open the appeal, and detailed arguments (including whether Assange has in effect already served any possible sentence) were not 'heard' in the usual sense of both sides presenting and responding to points. This conduct is highly irregular and follows the pattern set by Assange's extradition appeal to the UK Supreme Court (May 2012), where the court decided on an argument that neither party presented, rather than set precedent through the bypassing of ECtHR case-law. The court's 'Vienna ruling' was then reversed at the earliest opportunity (November 2013).
In a further sign of the case's unusual progress, the ruling failed to include detailed legal reasoning, which Samuelson described as "disappointing and annoying". Indeed, on the critical issue of proportionality, the ruling's preamble states, "Even an arrest in absentia can in practice result in restrictions on the individual's freedom of movement", and then dismisses the point by citing the Svea Court of Appeal ruling (20 November 2014), which blithely states, "Julian Assange can leave the embassy if he so wishes", and so his restricted freedom "cannot be equated with a deprivation of liberty". This argument is backed up by referencing a chapter in a book on ECtHR case law. And yet, beyond the court's self-serving simplifications, when the actual circumstances of Assange's detainment are applied to ECtHR rulings, the opposite is found.
The court's aversion to detail is telling. Even a cursory glance, comparing the ruling to the 42-page submission it was supposed to appraise, reveals a laziness bordering on contempt. It is clear that the court could not find within itself the will to go through the motions for appearance' sake. The UK Supreme Court produced 117 pages before sidestepping everything before it, but Sweden's Supreme Court could only find eight and a half desultory pages.
The first half of the ruling's judgment is taken up with dismissing the argument that "after being surrendered to Sweden, [Assange] can be in turn surrendered to the US, with serious negative consequences". The argument's conclusion is as follows:
If a person has been surrendered in accordance with a European Arrest Warrant, then he or she cannot be surrendered to a third country without the approval of the pertinent authority in the Member State who surrendered the person. A surrender from Sweden to the US depends therefore – in addition to judgment according to Swedish law – on the approval of Great Britain. It can also be added that no such request has been made by the US to Sweden.
It is hard to conceive of a more cynical statement, or of any reason for making it, beyond the political nature of the Assange case. The concern of onward extradition to the US has always been focused on what would occur in the moments before Swedish legal proceedings come to an end. That is the point when US agencies will likely announce the unsealing of an indictment against Assange - facing a US extradition process from within a Swedish remand or custodial prison would cripple resistance. When, on 20 February 2011, the US Ambassador to the UK, Louis Susman, told the BBC’s Andrew Marr that the US "have brought no action against Mr Assange, and we'll have to see how it plays out in the British courts", the import of his message was clear.
The court appears to believe that because it is willing to ignore the chance of a US federal grand jury indicting someone under investigation (in 2010, grand juries declined to indict just 0.0067% of cases), then everyone else is allowed to sidestep the issue. Besides not addressing Assange's "asylum status as granted by Ecuador" or "the failure of the Swedish authorities to guarantee that Julian Assange will not be extradited to the US", the court's statement is meaningless.
The second half of the judgment follows the same line. The subject is proportionality and prosecutor Marianne Ny's 1,576 day (from 18 November 2010) refusal to question Assange under the EU Convention on Mutual Legal Assistance (MLA):
The chief investigator has not previously seen any acceptable alternative investigative methods for the time JA has been at the embassy.
The very long time the detention has been in effect must be weighed into the assessment and means an increased demand on the investigative authorities to review what alternative investigative opportunities are available to move the preliminary investigation forward. Otherwise a detention – even taking into account that it has not been executed – would be seen as in violation of the principle of proportionality.
However, after the decision of the Court of Appeal, the chief investigator took measures to arrange for an interrogation with JA in London. The public interest to continue the investigation weighs heavily. With consideration for this and for the risk that JA avoids legal process if the detention is rescinded, a continued detention in the current circumstances can be seen to be in accordance with the principle of proportionality. Therefore there are currently no reasons to rescind the decision. What JA has otherwise submitted does not lead to a different assessment.
That something can be "in violation of the principle of proportionality", or would be, but for the fact that after four and a third years "the chief investigator took measures to arrange for an interrogation with JA in London" is laughable. The proposed "measures" don't reverse the past, let alone the accepted state of violation at the time of the judgment. What Ny may or may not do in the future is a child-like decoy.
Further, prosecutor Ny's about-face was forced upon her, first by the Svea court's warning, "that the failure of the prosecutors to examine alternative avenues is not in line with their obligation", and then when Ny failed to respond, by the Supreme Court's call on the Attorney General to “expeditiously reply to the case, especially on the issue of the conduct of investigations and the principle of proportionality". And yet, despite these interventions, and the fact that the basis for the court's judgment rests upon Ny's ability to move her investigation partially back within the rule of law, in the 62 days since agreeing to question Assange (13 March) she has not acted. According to Thomas Olsson (representing Assange), Ny is yet to submit MLA requests to either the UK or Ecuador.
Justice Svante Johansson's dissenting opinion found that, "The measures now taken [to arrange an interrogation with Assange in London] should have been initiated earlier, in order to see how far this would have taken matters". Against this failure "the grounds for continued detention cannot be seen as weighing so heavy that they outweigh the intrusion and harm that in practice the measures mean for Assange" and that, "A decision for detention in the current circumstances is therefore in violation of the principle of proportionality."
Johansson's opinion has created an opening for the proportionality decision to be revisited; the Secretary General of Sweden’s Bar Association, Anne Ramberg, stated, "The reasoning of the court indicates that it may take a different view [on proportionality] with the passing of further time." Moreover, once Assange has been questioned, he has (according to Samuelson) the right to restart the appeal process - although politically the process in Sweden is dead.
As matters turn in endless circles, a situation that conforms to Sweden's official position on the time limits of detention without charge - which is "there is no limit" - shadows remain in the form of Assange's submission to the United Nations' Working Group on Arbitrary Detention, which is expected to reach a verdict in the next few weeks; and Fair Trials' unacknowledged request that the Supreme Court adhere to its "obligations" and "make a reference for a preliminary ruling to the CJEU", to clarify the extent to which suspects have a right to see evidence on which arrest is based (which is relevant to the Assange case because of the concealment of exculpatory evidence).
Both are likely to play a role in any ECtHR case. As to whether Assange's legal team will apply to the Court, Baltasar Garzón has stated that "we will turn to international courts to safeguard his rights".
In the meantime prosecutor Ny acts as the jury and judge, taking days from Assange as she fails to fill out MLA request forms and in doing so, refusing to submit to the will of Sweden's judicial institutions.
May 16, 2015