RECORD 17 November 2014 and 18 November 2014 Report in Stockholm

Transcription

1 SVEA COURT OF APPEAL Section 0111 RECORD 17 November 2014 and 18 November 2014 Report in Stockholm Page 1 (9) File annex Case no Ö COURT Judges of Appeal Niklas Wågnert, Monica Kämpe, rapporteur, and Torbjörn Widemar REPORTING AND RECORDING CLERK Legal Clerk Klara Lundberg APPELLANT Julian Assange, date of birth 3 July 1971 Deprivation of liberty: Detained in his absence Embassy of Ecuador in London Flat 3B, 3 Hans Crescent London SW1X 0NT United Kingdom Representative: Thomas Olsson, Member of the Swedish Bar Association Box SE Stockholm Representative: Per E. Samuelsson, Member of the Swedish Bar Association Box SE Stockholm RESPONDENT Director of Public Prosecutions Marianne Ny and Deputy Chief Public Prosecutor Ingrid Isgren Swedish Prosecution Authority Prosecution Development Centre, Gothenburg, and Söderort Public Prosecution Office, Stockholm, respectively MATTER Detention etc. RULING APPEALED Order of Stockholm City Court of 16 July 2014 in case no B Julian Assange has presented a claim that the Court of Appeal set aside the detention order of the City Court. Doc.Id Postal address Visitor s address Telephone Fax Office hours Box 2290 SE Stockholm Birger Jarls Torg Monday Friday 09:00-15:00 svea.avd1@dom.se

2 Page 2 Julian Assange has also presented a claim that before the matter of detention is examined the Court of Appeal shall order the prosecutors to release copies of the injured parties text messages to him or to submit them to the Court of Appeal. If this claim is not granted, he has presented a claim that the Court of Appeal shall obtain a preliminary ruling from the Court of Justice of the European Union concerning the question of whether an obligation follows from Article 7 of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings for the prosecutor to provide copies of the material that the suspect has been informed of and wishes to cite to support his opposition to an order depriving him of his liberty. The prosecutors have opposed all of the claims presented by Julian Assange. Following a report on the matter the Court of Appeal makes the following ORDER (to be issued on 20 November 2014) Ruling 1. The Court of Appeal refuses Julian Assange s claim that the prosecutor be ordered to release the injured parties text messages to him or, alternatively, to submit them to the Court of Appeal. 2. The Court of Appeal refuses Julian Assange s claim that a preliminary ruling be obtained from the Court of Justice of the European Union. 3. The Court of Appeal refuses Julian Assange s claim that the detention order of the City Court be set aside. Reasons The Court of Appeal will begin by considering Julian Assange s claims concerning the injured parties text messages and a preliminary ruling from the Court of Justice of the European Union. The Court of Appeal will then go on to examine whether the conditions for detention have been fulfilled. This examination covers the questions of

3 Page 3 whether there is probable cause for the suspicions of crimes, whether there is a risk that Julian Assange will evade legal proceedings or punishment, whether there is any impediment to the enforcement of a detention order and whether the detention is proportionate. Release of text messages and preliminary ruling Julian Assange has asserted with reference to Article 7(1) of the above-mentioned Directive that he is entitled to receive copies of the injured parties text messages in order to be able to challenge the detention order effectively. The prosecutors have asserted that Julian Assange s right to insight has been satisfied in that his defence counsel has had the opportunity to see the messages concerned on several occasions and Julian Assange has still to be examined on the basis of these messages. A person who is detained has the right to be informed of the facts that form the basis for the detention order (see Chapter 24, Section 9 a of the Code of Judicial Procedure). This section implements Article 7(1) of the Directive, which provides for a right to access documents that are essential to challenging a detention order effectively. This right also follows from Article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (see the ruling of the European Court of Human Rights of 13 February 2001 in the case Garcia Alva v. Germany). The explanatory text to the Swedish legislation states that this regulation does not mean that the suspect is entitled to their own copy of the material in the investigation, but that the material shall instead be made available in the way that is deemed to be most appropriate in the individual case (Govt Bill 2013/14:157 p. 28). The Court of Appeal cannot see that the Swedish implementation of the relevant provision in the Directive does not meet the requirements of the Directive. Julian

4 Page 4 Assange has been informed of the material in an appropriate way in the way specified by the prosecutors. This means that his right to insight has been satisfied. On account of what has been said above, there is no reason to order the prosecutors to submit the material sought to the Court of Appeal or to release it to Julian Assange, or to request a preliminary ruling from the Court of Justice of the European Union. Julian Assange s claims concerning the text messages shall therefore be refused. Conditions for detention under Chapter 24, Section 1 of the Code of Legal Procedure Any person suspected on probable cause of an offence punishable by imprisonment for a term of one year or more may be placed in detention if, in view of the nature of the offence, the suspect's circumstances, or any other factor, there is a risk that the person will: 1. flee or otherwise evade legal proceedings or punishment; 2. impede the inquiry into the matter at issue by removing evidence or in some other way; or 3. continue their criminal activity. If a penalty less severe than imprisonment for two years is not prescribed for the offence, the suspect shall be detained unless it is clear that detention is unwarranted. Detention may only occur if the reasons for measure outweigh the intrusion or other detriment to the suspect or some other opposing interest. Is Julian Assange suspected on probable cause of crimes? The Court of Appeal shares the assessment of the City Court that Julian Assange is suspected in probable cause of: 1. unlawful coercion on August 2010 in Stockholm; 2. sexual molestation on August 2010 in Stockholm;

5 Page 5 3. sexual molestation on 18 August 2010 or the surrounding days in Stockholm; and 4. rape, a less serious crime, on 17 August 2010 in Enköping. Is there a risk that Julian Assange will evade legal proceedings or punishment? The Court of Appeal shares the assessment of the City Court that there is risk that Julian Assange will flee or evade legal proceedings or punishment in some other way. Are there legal impediments to enforcement that mean that the detention order should be set aside? Julian Assange has asserted that the fact that he has been granted political asylum and is staying in an embassy is a legal impediment to enforcement of the detention order. He has added that his stay at the embassy can be expected to last for several years and that the police guard outside the embassy means that he cannot make full use of his asylum. According to Julian Assange this constitutes reasons for setting aside the detention order. The fact that Julian Assange is in an embassy means that the detention order cannot be enforced at present. In the view of the Court of Appeal this is, in itself, not a reason for setting aside the detention order. Nor does the Court of Appeal consider that what Julian Assange has stated about him not being able to make full use of his asylum means that the detention order should be set aside. Is it proportionate for Julian Assange to be detained in his absence? Detention may only occur if the reasons for the measure outweigh the intrusion or other detriment to the suspect or some other opposing interest (see Chapter 24, Section 1, third paragraph of the Code of Legal Procedure).

6 Page 6 This provision is an expression of the proportionality principle, which means that a coercive measure shall in terms of its nature, force, scope and duration be in reasonable proportion to what stands to be gained from the measure. The Court of Appeal considers, like the City Court, that in assessing whether the detention order is proportionate account shall be taken of the fact that, as a result of a European arrest warrant, Julian Assange both was deprived of his liberty under the period 7 16 December 2010 and has had various restrictions (including monitoring using an electronic tag, an obligation to report to the police every day and a ban on being outside of his place of residence at night). Julian Assange has also asserted that the circumstances similar to house arrest in which he has been living at the embassy since 19 June 2012 are a deprivation of liberty under the case law of the European Court of Human Rights. If these circumstances do not constitute a deprivation of liberty, they shall still be taken into account in the assessment of proportionality. Julian Assange has stated that he has been forced to remain at the embassy in order to be able to enjoy the asylum granted to him and that he risks being extradited to the United States to face legal proceedings there if he leaves the embassy. The Court of Appeal makes the following assessment in this part of the case. Julian Assange s stay at the Embassy of Ecuador means that his freedom of movement is restricted in practice. This restriction is linked to the detention order in the sense that the police guard outside the embassy is intended to guarantee enforcement of the order for his extradition to Sweden. However, the fact is that Julian Assange can leave the embassy if he so wishes. This fact means that the restriction of his freedom cannot be equated with a deprivation of liberty (see Danelius, Mänskliga rättigheter i europeisk praxis [Human rights in European case law], 4th edition, pp and the cases cited there).

7 Page 7 The Court of Appeal also considers, and shares the view of the City Court in that respect, that his stay at the embassy cannot be regarded as a consequence of the detention order that is worthy of consideration and that, as a result, it should not be taken into account in the assessment of proportionality either. The same applies to Julian Assange's objection in the Court of Appeal that he must give up his right to political asylum if he leaves the embassy and is subject to extradition to the United States. As regards Julian Assange s allegation that the prosecutors are not moving the preliminary investigation forward, which means that the detention order shall be deemed to be disproportionate, the Court of Appeal makes the following assessment. A preliminary investigation shall be conducted as expeditiously as possible and in a way that means that no person is unnecessarily exposed to suspicion, or put to unnecessary cost or inconvenience (see Chapter 23, Section 4 of the Code of Legal Procedure). A detention may never continue for longer than is necessary in view of its purpose. One aspect of this is that the authorities concerned shall work with reasonable efficiency to make the period of detention as short as possible. One matter of importance is how the procedure on which the detention is dependent has progressed and how it can be expected to continue. Account shall be taken of the way in which the authorities concerned have acted or not acted, as well as of whether they can be expected to act, in the future, with the speed called for in view of both the interest of the suspect and the interest that the matter is investigated thoroughly and determined on a secure basis. If the investigation into the matter does not provide support for the assessment that sufficient speed has been observed, this is a reason against continued detention. (See case NJA 2011 [Supreme Court law reports], p. 518.) According to what has emerged Julian Assange has only been interviewed on one occasion concerning one of the suspected crimes. That interview was held on 30

8 Page 8 August The fact that the preliminary investigation has not been moved forward for a long time must be deemed to entail inconvenience for Julian Assange, even though the detention order has not been enforced. It is also in the interest of the injured parties that the investigation advances. The reasons given by the prosecutors for not interviewing Julian Assange at the embassy include the fact that the interviews must take place here in Sweden in view of the nature of the crimes and the investigation and the fact that a possible trial requires him to be in Sweden. The prosecutors have also stated that, after consideration, they have concluded that interviewing Julian Assange in the United Kingdom would not lead the investigation forward in an effective way. In the latter context they have pointed out, in particular, that an interview in the United Kingdom would require the granting of an application for mutual legal assistance, that such a procedure is based on the suspect s participation and consent to the measures taken and that it is not possible to use coercive measures to enforce a decision to take a DNA sample or to hold an interview. Julian Assange has asserted that the prosecutors ought to have tried out interviewing him at the embassy. In response to the prosecutors' arguments he has, for example, objected that he has repeatedly stated that he is willing to be interviewed in the United Kingdom; that a suspect has an unconditional right to refuse to answer questions and that it therefore does not matter where the interview is held; and that a DNA sample has already been taken from him. The failure of a prosecutor to move a preliminary investigation forward in a particular way can result, in certain circumstances, in a finding that a detention order is disproportionate and that it should therefore be set aside (see the case NJA 2007 s. 337). In assessing whether such a failure shall lead to the setting aside of a detention order considerations that should be of great importance include the nature of the crime and the force of the special reasons for detention. It is also reasonable that higher demands must be made on the reasons put forward by the prosecutor in support of their request for detention the longer the period of time that passes without the prosecutor moving the preliminary investigation forward.

9 Page 9 The Court of Appeal notes, however, that the investigation into the suspected crimes has come to a halt and considers that the failure of the prosecutors to examine alternative avenues is not in line with their obligation in the interests of everyone concerned to move the preliminary investigation forward. The fact that the detention order is also intended to ensure the presence of Julian Assange a possible future trial is of no importance, as such, in this context. The question is then whether the failure of the prosecutors to examine alternative avenues for the investigation along with the other inconvenience and detriment that the detention order has entailed for Julian Assange (see p. 5) means that the order that he shall be detained in his absence shall be deemed to be disproportionate. In making this assessment account must be taken of the fact that Julian Assange is suspected of crimes of a relatively serious nature. Moreover, there is a great risk that he will flee and thereby evade legal proceedings if the detention order is set aside. In the view of the Court of Appeal, these circumstances mean that the reasons for detention still outweigh the intrusion or other detriment entailed by the detention order. Thus there is at present no reason to set aside the detention order. Therefore Julian Assange's claim to that effect shall not be granted. HOW TO APPEAL, see annex A The detention order can be appealed without any restriction in time. The other orders may only be appealed in connection with an appeal of the detention order. Klara Lundberg Record presented/