FactCheck: Are the British treating Julian Assange unfairly?
The claim
“On September 1, 2010 the case was unexpectedly re-opened by the (Swedish) Director of Prosecutions who sought to have Assange extradited – not to face charges – but for further questioning. This was eventually granted by the British court, which surely must be unprecedented that someone could be extradited simply for questioning, rather than to face prosecution!”
MP George Galloway on Julian Assange, 21 August 2012
The background
Undermining the British government’s position in the diplomatic stand-off over Julian Assange, the MP George Galloway implied our courts have done something “unprecedented” in order to comply with the Swedish authorities.
Setting aside the diplomatic impasse which now finds Mr Assange holed up at the Equadorian embassy, is this a first for Britain? Are we really extraditing someone simply for questioning?
FactCheck calls in the lawyers.
The analysis
The problem is that most Britons would interpret questioning as police questioning. But this isn’t what Mr Assange is facing in Sweden. As barrister Anya Palmer told us, Sweden has a different system to us and in their system the formal charge comes “at a very late stage”. Granted, Mr Assange has yet to be charged – but he stands accused of four offences including rape.
The argument that Mr Assange has yet to be formally charged and is wanted “only for questioning” fell at the first hurdle in the British court system: the Magistrates Court.
During Round Two, in the High Court, it was conceded that he was wanted not for questioning but for the purpose of prosecution.
Ms Palmer said: “It is not true that Assange is only wanted for questioning. The next step in the Swedish proceedings is to conduct a second interview with him before making a decision whether to formally charge him. The prosecutor is presently disposed to charge him, unless any new evidence emerges that might change her mind”.
What’s more, if he was only wanted for questioning, he could not legally face extradition.
The Home Office told FactCheck: “A European Arrest Warrant cannot be issued for the purposes of questioning. Extradition is ordered to either face prosecution/trial or to serve a sentence already imposed.”
So there’s nothing unprecedented or political about the way in which the British courts have moved.
Niall McCluskey, an extradition and criminal lawyer, told FactCheck: “George Galloway has come unstuck. Britain has acted on a purely legal basis. There’s nothing in Assange’s case that outweighs the norms of standard extradition cases.”
In fact, Mr McCluskey told us that “the only politics is from Assange himself”.
“He is suggesting that America has got it in for him. There has been no request from America (for his extradition).”
At this stage, the UK’s first obligation is to Sweden – as the Swedes want him extradited. As for the US, as Mr McCluskey explained, Mr Assange could only be extradited for a mainstream criminal charge that is recognised by the country he was being plucked from.
It is not clear what charge Mr Assange could be extradited for. Mr McCluskey said the US could face “big problems” in charging Mr Assange – as it is not a criminal offence for Wikileaks to receive information.
However, Mr McCluskey added: “That’s not to say his suspicions (over US treatment) might not prove him right. Manning was treated shamefully.”
US Army intelligence analyst Bradley Manning faced multiple criminal charges – including aiding the enemy – for leaking classified US documents to Wikileaks. Human Rights groups have told Channel 4 News the treatment of Mr Manning has been “inhumane”.
The verdict
Wading into the furore surrounding Mr Assange has so far cost George Galloway his column in the respected political magazine Holyrood. His comments on the rape charges Mr Assange faces in Sweden left the editor “frankly gobsmacked”.
It seems he’s off the mark on the legalities too. It wouldn’t be possible for the British to extradite Mr Assange if he was only wanted for questioning – a European Arrest Warrant can only be issued for those that face prosecution, trial or to serve a sentence already imposed.
Mr Galloway implied that Britain and Sweden were treating Mr Assange unfairly by refusing to guarantee he would not be extradited to the US. While many might sympathise with Mr Assange’s fears over possible US treatment, at this stage the US has said nothing and it is unclear on what charges it could extradite him for.
Ultimately, as Mr McClusky told us: “Galloway bypasses the basic fact that he faces sexual allegations in Sweden. It doesn’t matter if he is Public Hero Number One, he should be going to Sweden.”
By Emma Thelwell
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There are 41 comments on this post
Cathy/Emma,
Sophistry upon sophistry.
This boils down to whether you believe the British, Swedish and American establishments are acting in cahoots or not.
After establishment of the torture chamber at Guantanamo Bay and the murderous attacks on Libya, Iraq and Afghanistan I wouldn’t trust the three entities to empty my bin, never mind trust them to deliver justice.
Anyone who thinks otherwise is invited to view US mainstream media attacks on Assange, including incitement to murder him with “special forces” (read: murder gangs).
I have no idea whether Assange is guilty of the rape charge (and it is one of four charges, three of which have to do with not wearing a condom), but if he is he should be dealt with accordingly. If the Yanks do not intend to apply for extradition on the unrelated matter of Wikileaks then let them say so – what is their problem in this?
The fact is this whole matter stinks to high heaven and I do not believe it has nothing to do with the Wikileaks issue. The Brit threat to invade the Ecuador Embassy is merely one other legal ploy and sophistry, something you would expect from a totalitarian state.
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or: Julian Assange doesn’t want to go to Sweden because he knows that he would not only be charged but also sentenced, in which case it makes sense for him coming up with a reason to avoid extradiction. Various legal voices have already said that due to proceedings an etradiction to the US would be a lot harder from Sweden than the Uk.
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One presumes Philip Edwards is not resident in the UK, Sweden or USA and eligible for ‘bin collection services’. Presumably he either does not have accommodation responsibilities that provide him with a bin collection service, or he lives elsewhere or has arrangements for some non Governmental organisation to empty ‘his bin’!
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“or: Julian Assange doesn’t want to go to Sweden because he knows that he would not only be charged but also sentenced”
Oh, please. He has made it known that he is prepared for Sweden to come and question him. If they did so, they could bring charges and sentence him anyway.
Julian Assange has stated clearly that he doesn’t want to go to Sweden because he believes he will not be kept safe from US interference. There is no reason to disbelieve him when he says that is his belief, especially since there is every likelihood that it is true whether he is paranoid or not.
Furthermore, it has not been established that any rapes have even occurred. This has nothing to do with rape and everything to do with the USA.
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Could the Factchecker also please comment on the following pieces of testimony from the District Court hearing which found that Assange should be extradited? They are copied word-for-word from live tweets of the proceedings.
Brita Sundberg-Weitman (former Swedish judge): the decision to prosecute can only be taken after the preliminary investigation has closed.
and
Sven-Erik Ahlem (former Swedish chief prosecutor): The last thing that happens as part of the preliminary investigation is that the suspect has a right to see all the material collected and also comment on whether he/she wants to hear more witnesses.
JJ (Assange junior lawyer): The prosecutor cannot make the decision on whether to prosecute until then?
SEA: That’s correct, unless there’s a risk of prescription (?)
But, as we all know, the basis on which Justice Riddle ruled that the extradition was lawful was that there was a clear intention to prosecute, confirmed in a late statement submitted to the UK court by the Swedish prosecutor, Marianne Ny. This appears to be in direct contravention of Swedish law, which states unambiguously that she is not allowed TO DECIDE to prosecute until ALL questioning…
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I think the consensus is that Galloway’s a nut. A better question would have been have the Swedes treated him fairly within the criminal justice system.
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There are two things I am wondering about which you don’t mention, and they both are mentioned in the following document:
http://www.scribd.com/doc/48396086/Assange-Case-Opionion-Sven-Erik-Alhem
1) Sweden seems to have been obliged to protect Assange’s anonymity as long as he wasn’t convicted, and they evidently didn’t. Does that matter?
2) It seems Sweden couldn’t be bothered to question him when Assange was still in the country. Is there no rule on how long you can wait with questioning? It looks like disrespect to both suspect and accuser to sit on your hands until the suspect has left the country. Does that matter?
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Does the obligation to protect Assange’s anonymity still apply if he’s done a bunk to another country though?
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In Sweden once you’ve had your final interview you have to be formally charged within two weeks.
If they’d interviewed him while he was there they wouldn’t have been able to conduct their investigation thoroughly.
It’s the same reason why they refused him the interview in the Swedish embassy, because they’d have to get him over there within two weeks to prosecute him and he’d obviously bluff his way through the courts like he is now.
Also, with regards to his anonymity, I’m not sure that’s really possible with someone in his position – particularly when interpol put out an arrest warrant for him – it’s the kind of thing papers pick up on.
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George Galloway is a posturing buffoon who gets elected because (a) he tells the voters what they want to hear even if he can’t do anything about his promises and (b) politicians of the mainstream parties give him so much cheap ammunition that a blind, one-legged cricket-playing sloth could put the ball in the back of the net. It’s unfortunate that we can’t get elected independent people who aren’t so completely self-regarding & hypocritical. (Think – if it was Blair in the Ecuadorean embassy accused of rape in Sweden, claiming to be concerned about extradition to, say, Iraq for war crimes, would Galloway’s views have been radically different?). I realise consistency is the hobgoblin of small minds, but too often the need to make political points stands in the way of the facts.
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What is the big deal with Sweden not providing a guarantee that they will not extradite Assange? Are they expecting rape charges to come in from there as well?
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Not to defend Galloway, but isnt there a difference between being tried for the deaths of thousands of innocent civilians and being locked away for simply exposing the workings of the US government, which is effectively just good journalism?
Just for my clarification.
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“What is the big deal with Sweden not providing a guarantee that they will not extradite Assange? Are they expecting rape charges to come in from [USA] as well?”
Probably. Rape charges today, wiki-leaks tomorrow. Once he’s safely installed in Guantanamo Bay it won’t really matter any more.
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Bit of a circular argument Cathy. He can’t be extradited for questioning, therefore he isn’t being? You mean, apart from the fact that you’ve just explained that that’s exactly what’s happening: he’s wanted for an interview which will form the basis of a future decision on whether or not to prosecute – ie by definition, he’s not wanted at this stage for prosecution.
Referring to court decisions on this, as if that lends the whole thing any credibility, only helps to highlight how little confidence we can have in the courts as far as extradition cases go. In answer to your question, no it’s sadly not unprecedented – you only have to look at cases like Ian Norris, Chris Tappin, Gary McKinnon, Richard O’Dwyer et al. to see how in all these cases the courts’ judgements don’t reflect the facts, but are subverted for political expediency. Or how about the Tollmans, remember them? Or the non-extradition of Pinochet?
Everyone knows the EAW is not fit for purpose, only for massive abuse and injustice (eg Andrew Symeou, among many others).
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We can be certain it is not just about the sex charges otherwise would Britain provoke an international incident by threatening to forcibly enter an Embassy presumably with armed troops, with police and helicopters overhead? Would the World press be parked outside the Embassy? As Women Against Rape pointed out, most women sex victims are lucky if they can get the police to even listen to them.
It all makes sense though if it is really about Wikileaks revelations of American human rights abuses, torture, special rendition, mass assassinations and collusion with death squads on an industrial scale. America demands silence on such matters. You speak out, you pay.
True, there has been no application for extradition to USA so far. However the Guardian today revealed (Seumas Milnes Column, 22nd August)that a Grand Jury in Virginia has been preparing a case against Assange for perjury.
Bradley Manning was tortured and may face 52 years in prison. He is small fry compared to Assange. Who really doubts that the USA wants Assange in the dock facing? Assange is right to fear for his life.
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Very clear and concise. Assange must face serious charges made against him. This is nothing to do with Wikileaks.
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Of course the British are acting inside the law, I don’t think anyone would expect illegal action, although Hague’s willingness to comply with the extradition even if it meant to remove diplomatic status to the ecuadorean embassy is somewhat suspicious. The question is: Are the Swedes treating Julian Assange unfairly? Why wasn’t he prosecuted when he was still in Sweden? Why do they refuse to conduct questioning in London?
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Mr. McClusky is one of those lawyers who actually claims to believe in the impartiality of the Western legal system.
To use him as an expert is frankly pathetic. There is no such thing as protection from human rights abuses anymore when the US, Israel, Russia, etc can conduct extra-judicial murders with impunity. There seems to be some dictat by editors that their journalists must assail Assange. We don’t buy it.
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Margot – many people believe that the Swedish prosecutor did not try to interview Assange when he was in the country. However, this is a falsehood propagated by his lawyer, which was proved in court to be untrue. The expert you cite was unfortunately misled as to this matter.
According to the New Statesman:
“In Hurtig’s “proof” (or prepared) witness statement, he had said “astonishingly [the prosecutor] made no effort to interview [Assange] on the rape charge to get his side of the story” whilst Assange was still in Sweden. This was a highly important statement, but it was completely untrue. Indeed, in the sort of criticism rarely made by an English judge, it was held that Hurtig had deliberately sought to mislead the court on this point. The effect of this was catastrophic for the Assange case: not only did it discredit Hurtig, but the two key legal experts relied upon by Assange had wrongly based their expert evidence that the EAW should not have been issued on Hurtig’s false claim.”
http://www.newstatesman.com/blogs/david-allen-green/2011/02/assange-eaw-sexual-sweden
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“It is not true that Assange is only wanted for questioning. The next step in the Swedish proceedings is to conduct a second interview with him before making a decision whether to formally charge him.”
That certainly sounds like questioning to me.
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Consider the statement from the Home Office…
“A European Arrest Warrant cannot be issued for the purposes of questioning. Extradition is ordered to either face prosecution/trial or to serve a sentence already imposed.”
The Swedish authorities have NOT said they want to prosecute Assange. As the text says prosecution occurs after all investigations have been exhausted and a viable case for charge is established. You can’t prosecute a defendant without a clear charge for which he or she indicted. Assange has not been prosecuted as no interviews have been undertaken to establish the truth of the case.
I cannot see the validity of the arrest warrant. Assange has not been “prosecuted / face trial / or serve a sentence already imposed”.
How can the Home Office justify the arrest warrant?
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Wait a second..
” Granted, Mr Assange has yet to be charged – but he stands accused of four offences including rape.”
Sorry… but you’ve just torpedoed your entire fact check right there. He HASN’T been charged, and they HAVEN’T decided to yet.
And that’s not even considering the frankly idiotic rape hysteria that infects any discussions on this type. Does any sensible, rational person think that having sex with a women you’ve just had sex with is equivalent to someone attacking and raping a woman in a dark alley… are those the same just because she nodded off after sex?
Of course they aren’t. The ghastly shouting house that is the cadre of British media women voicing their irrational opinions on this subject is doing no favours to the women who actually ARE raped and SHOULD be coming forward to ensure that justice is done.
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“raping a woman in a dark alley” is an irrelevant trope – most rapes are by people known to the survivor, their friends, colleagues and partners. It’s disgusting to suggest that their experiences of rape are invalid or lesser because of your fantasy.
No sensible, rational person thinks that having sex with anybody without their consent is okay, only rapists and their supporters.
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No, they aren’t the same. But they ARE both rape. If you penetrate someone while they are asleep, and they haven’t given you prior indication that they like that sort of thing, then you have neither consent nor a reasonable belief that you have consent. That’s the legal definition of rape.
The aggravating factors associated with your “dark alley” scenario should mean a longer sentence than for the rape of a sleeping partner, but that doesn’t mean the latter shouldn’t be prosecuted or convicted.
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Doesn’t previous consensual intercourse a short time previously constitute reasonable belief? This was very quickly a sexual relationship, and there was no dissent on waking.
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Emma and Cathy, the Cambridge University Law Journal argue the extradition warrant is invalid and the Supreme Court is wrong. Your thoughts? Thanks.
Summary:
“The result was a fundamental mistake in the legal reasoning of the Court”
“Thus, it could not be demonstrated that the term ‘judicial authority’ in the Framework Decision included a prosecutor, presumptively invalidating the arrest warrant and rendering any extradition based on it wrongful. Whatever one might think of the Appellant – and a great many opinions have been ventured as to the quality of his character – one cannot help but look at the decision in Assange as a further example (as if one were needed) of the dysfunctional relationship between international and municipal law.”
Source:
“Assange v Swedish Prosecution Authority: the (mis)application of European and international law by the UK Supreme Court”
http://www.cjicl.org.uk/index.php?option=com_easyblog&view=entry&id=22&Itemid=101
http://www.cjicl.org.uk/index.php?option=com_easyblog&view=entry&id=23&Itemid=101
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Margot it’s not true that Sweden couldn’t be bothered to question him when Assange was still in the country.
“Mr Hurtig (Assange’s Swedish lawyer) said in his statement that it was astonishing that Ms Ny made no effort to interview his client. In fact this is untrue. He says he realised the mistake the night before giving evidence.”
http://www.bailii.org/ew/cases/Misc/2011/5.html
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I do not believe AT ALL that a second interview is necessary “to give the prosecutor the option to change her mind”. If she is at present sure she has enough evidence to charge him & he is behaving so difficult… She should play ball and charge him!!!!
And I am damn sure she is entitled to do so – as there are enough suspect who choose to remain silent during interviews.
Problem is – than she has to show if she really has the evidence….
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Has anyone read what was leaked about the us government’s behaviour?
The sexual assault accusations have been very succeful in semantically diverting this veritable bevy of political information.
Sweden could have questioned Assange in Britain, nit they have not. They could have very simply honoured the request not to have extradited Assange if he did go out there for questioning, yet they have not.
Check those facts factcheck
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Phillip, to answer one point: Yes, my opinion would be different if it was Blair worried about extradition to Iraq for war crimes. Mainly because Blair is so patiently guilty of war crimes, whereas Assange is only guilty of leaking some embarrassing stuff that US embassy officials have said, and America are known to be a little over the top in their handling of these matters. About the rape charges, that is for the courts to decide and he should answer those charges in Sweden. This position is not inconsistent; it’s just that the two cases you outline are not synonymous. But don’t let the facts stand in the way of your indignation on this matter.
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“Patently guilty” – your belief or evidence? Let’s see what Chilcott comes up with. Otherwise you are merely parrotting a belief which has yet to be proved. I’m afraid that on Blair the war criminal I’m perfectly willing for it to be proved, but I expect evidence. Otherwise all I hear is “two legs good, four legs bad”. In any case that wasn’t the point I was trying to make. The point I was making was about the way politicians change their approaches according to their belief system not acdcording to the evidence. And please don’t try reading people’s emotions into what they write. It’s just guesswork. I’m not indignant, as you suggest. I was merely noting that Galloway was running true to form & that his approach of telling his audience what they wnat to hear would change – not on the facts but in relation to his beliefs. I should also point out that the Blair example was a hypothetical example. Obviously I should have chosen a different one as this one stirs up people’s strongly held beliefs (which are based on incomplete evidence & group-think)
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The final quote undermines the entire article. WHY should someone be extradited simply because they face allegations in another country? Let Sweden come and conduct their interviews and proceed to charging him – and then can the matter of extradition be discussed. As for whether the US could charge him with anything, it is abundantly clear from their past conduct that this would not be relevant. He would certainly be detained without charge for several decades while they clarified the situation. Britain has no business extraditing a man who has not been charged, to a country where there are reasonable grounds to suppose he may be in danger of falling into the hands of a regime that would treat him unfairly for his political activities. It is wholly uncharacteristic behaviour on the part of Westminster, and as such lends considerable colour to the idea that “cahoots” are indeed playing a part behind the scenes.
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It frustrates me, infinitely, that those in support of Assange’s extradition, do not seem to notice that most people, that have done much worse than him, do not receive this type of treatment. The Interpol red notice? The police surrounding the embassy? Really? Would this be happening if he hadn’t released those classified documents?
How… HOW do you justify this? You don’t. You cannot.
We all know my country, the United States, is going to do everything they can to brutally torture this man. We have it out for him. We are not to be trusted.
Journalists, please consider a pause on kissing the rear-ends of these corrupt government officials. This is not journalism and you know it. Find a different career, if you have no courage to speak the truth.
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I agree that the police are using manpower that is out of proportion given that he is supposedly, ‘only wanted for questioning’. Would they use this amount of manpower to look for a missing child? The rest of what you say may only be supposition but I am inclined to think that you may be right given the circumstances
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Jason Sands: “raping a woman in a dark alley” is an irrelevant trope – most rapes are by people known to the survivor, their friends, colleagues and partners.
Speaking of irrelevant. Your reply is the typical meaningless outraged nonsense that infects any discussion of this issue. You make absolutely no points, other than to accuse others of “supporting rape”.
People like you are the reason no substantive discussion of this issue can take place publicly. Your first inclination is to attack anyone who disagrees with you as a supporter of rape. Well done!
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Swedish law professor Marten Schultz has said:
“The UK supreme court’s decision means only that Assange will be transferred to Sweden for interrogation. It does not mean that he will be tried, or even charged. It is entirely possible that he will be transferred to Sweden, questioned, and released if the Swedish authorities find that there are insufficient grounds for prosecution. It is impossible – as it should be – to predict how the case will unfold.”
http://www.project-syndicate.org/commentary/justice-for-sweden
A key decision was the magistrate’s interpretation of the Swedish word “lagforing” This was necessarily held to mean charged rather than the more general legal process. It had to be for the EAW to be valid.
Of course it has the secondary affect of charging a man with rape before he’s been given the right to reply. So much for British justice.
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Day and night they have a group of police officers outside the Ecuadorian embassy. They would not utilise manpower of this nature to find a missing child. This is purely a legal matter? ‘Politicians can fool some of the people some of the time . . .’.
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Both sides in the Assange case seem wilfully set on NOT listening to the other, but it’s ridiculously expensive and the parties are so boxed in, why not cut to the chase? Here’s my suggestion for resolving it.
Assange is wanted by the UK courts because he has failed to honour his bail. Therefore, let the UK propose to Sweden and to Assange that he relinquishes his asylum and permits himself to be arrested in the UK. Whereupon the UK will extradite him to Sweden accompanied by an EAW of their own, demanding his return to the UK once
the Swedes have finished their interview (etc.), to face the UK charges of failing to meet bail. Assange will then have to be returned to the UK once the Swedes have finished with him, and the ‘queue principle’ will operate, with the EAWs taking precedence over any future request for Assange’s onward extradition to anywhere else in the world.
The alleged threat from the USA via Sweden is thus removed, and Assange can comply with the first EAW. Ecuador will be happy, so will we, and so will Sweden – always provided the Swedish rape charge is is the only issue for all of them. We will then see.
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This is how I see the problem. The Swedish prosecutor could interview Julian in the Uk or the Ecadorian Embassy, if they were really serious that he had commited a “”serious” sexual assault, and if after inteview, they had reason to charge him, they could then do so. Their refusal to interview him, is highly suspicious.
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