On 11 May 2015, Sweden’s Supreme Court upheld the detention order issued (18 November 2010) against Julian Assange. In the run-up to the ruling a question arose – if Assange were to be charged following questioning and further investigation, and if he were to be convicted after a trial - whether under UK, Swedish and EU law, he has already served any realistic sentence that could be imposed.
Within hours of the ruling, Assange's Swedish attorney Per Samuelson stated that the court's "decision has been taken without letting us close our argument." One of the arguments that the court refused to hear was based on this question of detainment.
From 7 Dec 2010 to 19 June 2012, Assange was detained by UK authorities that felt legally “obliged to extradite him to Sweden” under a European Arrest Warrant (EAW) obtained by prosecutor Marianne Ny. There were grounds for denying Ny’s warrant because it was investigatory, but they were disregarded by UK courts. After a litany of EAW cases where CPS extradition guidelines were broken, UK extradition law was reinforced (July 2014) to stop extradition proceedings in an “absence of prosecution decision”. However, section 156, para 3 ensures the act cannot be applied retroactively, something that could only apply to one person's circumstances, the result of which is that Assange remains subject to extradition proceedings that lack today’s legal safeguards.
Returning to the question – according to UK CPS bail guidelines, one day of “monitored curfew” during a period of remand is equal to half a day in prison:
Sections 21 and 22 insert a new Section 240A into the Criminal Justice Act 2003. It provides that a court must direct that the period for which a defendant was subject to a curfew condition and an electronic monitoring condition, to count as time served by the offender as part of the sentence.
Section 240A: The "credit period" is the number of days represented by half of the sum of - the number of days on which the offender is subject to [an electronically monitored (EM) curfew of at least nine hours per day].
Therefore, the 560 days of Assange’s detention via an EM curfew would amount to 280 days of time served. According to recent UK judgements based on proportionality (Mazurkiewicz v. Poland, Jaskula v. Poland), a “credit period” derived from pre-trial detention can be taken into consideration when deciding on whether to uphold extradition requests.
Similarly, Sweden uses a “credit period” system to deduct pre-trial detention from sentences. The Swedish Penal Code, Section 5 states:
[…] if the sentenced person has been deprived of liberty through arrest, remand in custody, […] the period of such deprivation of liberty, shall be considered as time served in prison. […] If the time by which the sentence of imprisonment exceeds the period of deprivation of liberty is small, the court may direct that the term of imprisonment shall be considered to have been served in full as a result of the deprivation of liberty.
In the case of Sweden, there is no halving of pre-trial detention in sentence reductions, which means that Assange has already, in effect, served a 560 day sentence.
Further, research papers and official EU documents on the use of EM show that the 1:1 ratio rule, where one day of pre-trial EM detention is viewed as equivalent to one day in prison, is becoming the standard across the EU, with Austria, Belgium, Denmark, France, Germany, Hungary and the Netherlands all having adopted the practice in recent years. In terms of the use of EM in sentencing, 17 EU countries use the 1:1 ratio. This practice is supported by the EU Council Framework Decision on the EAW (Chapter 3, Article 26), which states:
It is highly uncertain whether Mr. Assange will be prosecuted at all, if extradited. If prosecuted, I consider it highly unlikely that he will be convicted. If convicted, he would be likely, in light of the nature and detail of the allegations themselves (the lack of any threats or physical violence, the consensual sexual relations between the complainants and Mr. Assange before the incidents and, in the case of [AA] after the incidents, and his personal circumstances, to receive a suspended sentence.
Section 6 states:
In cases concerning the failure to observe the reasonable-time requirement guaranteed by Article 6 § 1 of the Convention, the national authorities can afford adequate redress in particular by reducing the applicant’s sentence in an express and measurable manner (see Eckle, cited above, § 66, and Beck, cited above, § 27). The Court has held that such a reduction of the sentence is also capable of affording adequate redress for a violation of Article 5 § 3 in cases in which the national authorities had failed to hear within a reasonable time the case of an applicant held in detention on remand (see Dzelili v. Germany, no. 65745/01, § 83, 10 November 2005).
If Hurtig is correct (and as yet no one has spoken against his assessment), then the possibility of prosecution bias through a conflict of interests comes into play.
This is because, if Ny were to decide not to prosecute Assange following the questioning that is now due to take place in London, her decision to delay this fundamental investigatory step, by four and a third years, will cost Sweden’s Attorney General a minimum of £62,820 in detention compensation for Assange, as well as a further minimum of £27,060 for reputational damage.
And so, between the fallout of either pursuing a case where the sentence has already been served, or dropping it amid huge political, legal and financial costs, as well as the reputational damage that Ny will likely face, there is little doubt that the former is by far the lesser of two poor options.
However, this impetus towards moving ahead with charges, regardless of whether there remains, or ever were any reasonable grounds for doing so, can only provide Ny with a temporary solution. This is because a series of European Court of Human Rights (ECtHR) judgements have generated settled case-law on the question of pre-trial detention and sentence reduction. Chraidi v. Germany (October 2006), states:
May 16, 2015
The provisions of Section 5 on taking account of a period of deprivation of liberty as time reckoned for the enforcement of a sentence may also be applied to the extent found to be reasonable to a deprivation of liberty which took place outside the Realm.
An EU Commission green paper on the ‘Application of EU Criminal Justice Legislation in the Field of Detention’ (November 2011) goes further in referring to the Council of Europe’s Recommendation Rec(2006)13, which states:
22.  Remand in custody shall only ever be continued so long as all the conditions in Rules 6 and 7 are fulfilled.
 In any case its duration shall not exceed, nor normally be disproportionate to, the penalty that may be imposed for the offence concerned.
 In no case shall remand in custody breach the right of a detained person to be tried within a reasonable time.
The binding nature of these ECtHR judgements and the EU directive means that Sweden’s Supreme Court was faced with a stark choice; either to adhere to the proportionality principle held within Article 5 (3) and 6 (1) of the ECHR, or to find itself overturned at the next step. In the event, the court selected the latter and refused to hear the argument.
While the monitoring curfew lasted 560 days, the overall length of detention currently stands at 1,620 (at a cost to the UK of £11,035,000). There is good reason to believe, based on a 2013 judgement, that the ECtHR will rule that the Ecuadorean embassy period of detention is unlawful. And whether taken together or viewed separately, the duration of these periods have exceeded “the penalty that may be imposed for the offence concerned”.
The Assange case is set to continue in interesting times. And while the Swedish judicial system seemed content with ignoring the array of Code of Judicial Procedure and ECHR article violations set before it, it may have been better to act before the ECtHR takes control, rather than support a case that is already out of time.
1. The issuing Member State shall deduct all periods of detention arising from the execution of a European arrest warrant from the total period of detention to be served in the issuing Member State as a result of a custodial sentence or detention order being passed.
With regards to estimating the length of any sentence, Assange’s defence counsel, Björn Hurtig, has stated: