Julian Assange_ Swedish Justice

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1/04/13 8:16 AMulian Assange: Swedish justice

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Julian Assange: Swedish justice

PUBLISHED: 28 Mar 2013 PRINT EDITION: 28 Mar 2013

Dual criminality would be required to extradite Julian Assange from Sweden to the US. Assange in London, 2011.Photo: New York Times

Stefan LindskogIt has been reported in Swedish newspapers that Julian Assange fears that an extradition to Sweden may result in hissubsequent extradition to the United States to face charges there. It has also been reported that Assange thinks he

may be sentenced to death if convicted in the US.

It is amusing how the Assange case offers possibilities of sharp turns when it comes to topics to be discussed. From,on the one hand, whether lies about condoms can result in a sexual crime to, on the other, the question of if telling thetruth, by publishing classified information, can amount to a crime permitting extradition to the state that claims beingharmed.

Substantive issues

According to the Swedish act on extradition for criminal offences, a person present in Sweden, who in a foreign state issuspected of an act that is punishable there, may be extradited to that state.

Extradition is permitted, provided that the offence for which extradition is requested is equivalent to a crime punishable

under Swedish law by imprisonment of at least one year. Thus, extradition requires (i) an offence punishable under thelaw of both countries (dual criminality) and (ii) that the offence is of a certain degree ofseriousness.

But there are also other restrictions. Extradition may not be granted for military or political offences. Nor mayextradition be granted if there is reason to fear that the person whose extradition is requested runs a risk of beingsubjected to persecution threatening his or her life, or freedom, or is serious in some other respect.

Nor may extradition be granted if it would be contrary to fundamental humanitarian principles, e.g. in consideration of apersons youth, or the state of a persons health.

Further, an extradition must not violate Swedens obligations under the European Convention.

However, according to bilateral or multi-lateral treaties and other legal instruments, extradition can take place on more or less strict or lenient legal grounds.

Between members of the European Union, the European Arrest Warrant requires each national judicial authority torecognise, ipso facto, and with a minimum of formalities, requests for the surrender of a person made by the judicial


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authority of another member state. That is why the courts in the UK did not really try the merits of a Swedish arrestwarrant for Assange.

Procedures

If a person whose extradition is requested opposes extradition, it falls to the Supreme Court to examine whetherextradition can be legally granted under the conditions laid down by law. The Supreme Court then delivers its opinionto the government for use in its examination of the case.

If the Supreme Court holds that there is any legal impediment to extradition, the government is not allowed to approvethe request. The government can, however, refuse extradition even if the Supreme Court has not declared against it.

The reason for involving the Supreme Court is basically a variation of the blame game. It is convenient for thegovernment to declare that the request for extradition must be denied because the Supreme Court has ordered so.

US extradition

As I have stated, there are some bilateral treaties on extradition. And there are such instruments between Sweden andthe US. I will leave the technicalities aside but, in summary, the following is of special interest in this case:

a) The principle of dual criminality is applicable.

b) In respect of an extraditable offence committed outside the territorial jurisdiction of Sweden, extradition shall begranted only if the Swedish courts would be competent to exercise jurisdiction in similar circumstances.

c) Extradition shall not be granted when the offence is purely military.

d) Extradition shall not be granted if the offence in Sweden is regarded as political or connected with a political offence.

Relevant questions

Does Assange face a risk of being extradited?

I do not know what crime, if any, Assanges involvement in the publishing of military and diplomatic documents wouldamount to, as regards to US law. I have read somewhere, though, that Assange may be charged for communicatingnational defence information to an unauthorised source, and aiding the enemy. That is, as I understand it, espionage

ortreason.Now that raises some interesting questions.

The first question is: do we have an equivalent criminalisation in Sweden? Yes, certainly. But I think that the questionshould rather be put this way: is the offence for which extradition is requested a crime under Swedish law? Well, thatcould be debated. What is classified under US law is probably not classified under Swedish law. And enemies to theUS may not be enemies to Sweden.

Thus, the question is if the principle of dual criminality shall be applied based on the actual circumstances (documentsclassified under US rules and aiding US enemies) or on an equivalent Swedish situation (documents classified underSwedish rules and aiding Swedish enemies).

Further: what about the source privilege? Under Swedish law, it is with some exceptions not punishable to leakclassified information to the media. There is, however, an exception as regards Swedish military secrets. Is the sourceprivilege applicable when it comes to extradition?

Yes, probably. If, for example, a leakage to the press of business secrets in another jurisdiction is regarded as a crimeand extradition from Sweden is sought, the application should be denied notwithstanding that such leakage, ingeneral, is criminalised also in Sweden.

The source privilege takes over. But what about foreign military secrets? Is the exception to the source privilege asregards military secrets applicable to only Swedish secrets or, in extradition cases, also to military secrets of theforeign state? There are further questions:

a) Do you leak information to the enemy in a legal sense when you leak it to the world at large?

b) It could also be asked if the offence is purely military or to be regarded as political.

Other questions could also be put. But I restrict myself to these queries and put them to you for your consideration.


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Principles that govern

It is obvious that globalisation demands well-organised and far-reaching co-operation between states in order toefficiently fight cross-border crimes.

But co-operation means you must, in large measure, trust authorities in other jurisdictions. These are sensitive issues.They concern the rule of law.

During my years as a practising lawyer I learned to mistrust any organisation, including the state. When people come

together and think of themselves as united with a special task or goal, astonishing dynamics can cause strange thingsto happen. Thus, I think that one shall not presume that the state, or any part of it, is always good. If anything shouldbe presumed at all, it is to the contrary. It is sometimes necessary to view the different authorities of the state as headsof a vicious Hydra. You have to be attentive and to be prepared to fight the evil that a misled intent to do well can resultin.

Now, if a foreign authority wants anything, you should be even more aware. Why? Not because other states are evenmore wicked than your own I guess they are more or less the same. But because, when a state acts outside itsborders, the presumption is plainly put that it shall mind its own business.

That applies to extradition, I think, especially when it comes to crimes that are not directed against individuals, butagainst the state. Generally, in my opinion a state that claims to have been offended and therefore applies forextradition of the purported persecutor should not be helped out. This is also, to a certain extent, reflected in

Swedish legislation including the agreements between the US and Sweden in that extradition shall not be grantedwhen the alleged crime is military or political in nature.

Leaked information

At the end of the day, many years from now, I think Assange will not, even in Sweden, be associated with his efforts toescape the laws of Sweden. He will be thought of as the person who made public some pieces of classified informationto the benefit of mankind.

Crimes against humanity such as the [WikiLeaks images of Iraqi civilians being killed in a] helicopter shooting need tobe made known. The good made by leakage of such information cannot be underestimated. It should never be a crimeto make crimes of state known.

But leaks of that kind need not only facilitators like Assange. They also need conscientious brave men and women likeBradley Manning. Let us not forget him. Let us hope and pray that he will have a fair trial and balanced sentence. Icannot judge to what extent leakage of all the documents was ethically defendable. But I strongly hold that part of theleak was to the good of society and should not be punished.

Stefan Lindskog is a justice of the Supreme Court of Sweden, the highest court in that country. The above is an extractfrom a speech titled The Assange Affair: freedom of speech and freedom of information, a global perspective, whichhe will be giving at 7pm on April 3 at Elder Hall, University of Adelaide. www.law.adelaide.edu.au/events/lindskog/

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