Julian Assange: Swedish justice

1/04/13 8:16 AM

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 Lindskog It has been reported in Swedish newspapers that Julian Assange fears that an extradition to Sweden may result in his subsequent 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 the truth, by publishing classified information, can amount to a crime permitting extradition to the state that claims being harmed.

Substantive issues
According to the Swedish act on extradition for criminal offences, a person present in Sweden, who in a foreign state is suspected 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 the law of both countries (dual criminality) and (ii) that the offence is of a certain degree of seriousness. But there are also other restrictions. Extradition may not be granted for military or political offences. Nor may extradition be granted if there is reason to fear that the person whose extradition is requested runs a risk of being subjected 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 a persons 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 to recognise, ipso facto, and with a minimum of formalities, requests for the surrender of a person made by the judicial
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Julian Assange: Swedish justice

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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 arrest warrant for Assange.

Procedures
If a person whose extradition is requested opposes extradition, it falls to the Supreme Court to examine whether extradition can be legally granted under the conditions laid down by law. The Supreme Court then delivers its opinion to 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 approve the 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 the government 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 and the 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 be granted 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 would amount to, as regards to US law. I have read somewhere, though, that Assange may be charged for communicating national 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 question should rather be put this way: is the offence for which extradition is requested a crime under Swedish law? Well, that could be debated. What is classified under US law is probably not classified under Swedish law. And enemies to the US may not be enemies to Sweden. Thus, the question is if the principle of dual criminality shall be applied based on the actual circumstances (documents classified under US rules and aiding US enemies) or on an equivalent Swedish situation (documents classified under Swedish rules and aiding Swedish enemies). Further: what about the source privilege? Under Swedish law, it is with some exceptions not punishable to leak classified information to the media. There is, however, an exception as regards Swedish military secrets. Is the source privilege 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 crime and extradition from Sweden is sought, the application should be denied notwithstanding that such leakage, in general, is criminalised also in Sweden. The source privilege takes over. But what about foreign military secrets? Is the ex ception to the source privilege as regards military secrets applicable to only Swedish secrets or, in extradition cases, also to military secrets of the foreign 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 to efficiently 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 things to happen. Thus, I think that one shall not presume that the state, or any part of it, is always good. If anything should be presumed at all, it is to the contrary. It is sometimes necessary to view the different authorities of the state as heads of a vicious Hydra. You have to be attentive and to be prepared to fight the evil that a misled intent to do well can result in. Now, if a foreign authority wants anything, you should be even more aware. Why? Not because other states are even more wicked than your own I guess they are more or less the same. But because, when a state acts outside its borders, 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, but against the state. Generally, in my opinion a state that claims to have been offended and therefore applies for extradition 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 granted when 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 to escape the laws of Sweden. He will be thought of as the person who made public some pieces of classified information to the benefit of mankind. Crimes against humanity such as the [WikiLeaks images of Iraqi civilians being killed in a] helicopter shooting need to be made known. The good made by leakage of such information cannot be underestimated. It should never be a crime to make crimes of state known. But leaks of that kind need not only facilitators like Assange. They also need conscientious brave men and women like Bradley Manning. Let us not forget him. Let us hope and pray that he will have a fair trial and balanced sentence. I cannot judge to what extent leakage of all the documents was ethically defendable. But I strongly hold that part of the leak 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 extract from a speech titled The Assange Affair: freedom of speech and freedom of information, a global perspective, which he will be giving at 7pm on April 3 at Elder Hall, University of Adelaide. www.law.adelaide.edu.au/events/lindskog/ The Australian Financial Review

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