Thursday, November 27, 2014

Justice for Sweden

STOCKHOLM – Julian Assange’s bizarre bid for political asylum in Ecuador’s embassy in London has claimed headlines everywhere, but it has obscured an important truth: last month’s decision by the United Kingdom’s Supreme Court that Assange should be extradited to Sweden to face allegations of sexual crimes was the only possible outcome. The alternative – to reject the European Arrest Warrant issued by Swedish authorities – would have signaled distrust of Sweden’s legal system, which would have been unfair.

Whatever one’s sentiments about Assange and the claims that he has made in trying to secure asylum in Ecuador, let us be very clear: Sweden is a Rechtstaat – a state governed by the rule of law – in every sense. The Swedish court system is characterized by foreseeability, fairness, humanism, and high professional quality. These are facts.

Yet this description fits poorly with the image of the Swedish legal system that has dominated the debate since the allegations against Assange became public. Indeed, Assange and his supporters have portrayed Sweden’s legal system as a wilderness of injustice and political corruption.

This caricature has become a problem for Sweden. When influential people – filmmaker Michael Moore, feminist Naomi Wolf, journalist John Pilger, and many others – launch attacks on the Swedish legal system, it affects the country’s democratic reputation. And, unfortunately, the caricature has been allowed to dominate impressions of Sweden, because representatives of its legal system and other Swedish experts have failed to provide a more accurate picture.

When I travel abroad and meet lawyers interested in the Assange case (and they are many), I get asked the most incredible questions about Sweden’s legal system. Is it true that men are convicted of rape in Sweden on the sole basis of a woman’s allegations? Is it rape in Sweden when a condom breaks? Is it correct that Swedish judges contact the United States Justice Department before passing judgment in politically sensitive cases?

The list goes on. Did the Swedish Prosecutor-General meet with representatives of the US Embassy before the European Arrest Warrant in the Assange case was issued? Are judges selected by political appointment? Is it true that official Sweden is steeped in feminist ideology, and that Swedish public servants are taught that women never lie? Will the Swedish police put Assange on a plane to Guantánamo Bay as soon as he arrives?

The answer to all of these questions is “no,” though a couple of them point to half-truths. Let me return to these later on. Before turning to them, let us recall what actually happened in the Assange case.

Assange came to Sweden in 2010 as a spokesperson for WikiLeaks. Ironically, one of the reasons for his visit was Sweden’s good legal reputation; he came to investigate whether WikiLeaks could benefit from the unique protection afforded to information under our constitutional free-speech guarantees.

During Assange’s stay, two events occurred that led to accusations against him for sexual assault of two women. Before Assange was interrogated, he left the country. He then refused to return to Sweden, starting an almost two-year process to extradite him.

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.

What we do know is that Assange will receive fair treatment by Swedish legal institutions. And, yes, their respect for the rule of law extends to accusations of sexual offenses. As recently as a few years ago, the Swedish Supreme Court explicitly ruled that the same high standard of proof applied to other criminal allegations are to be applied in cases of suspected rape.

Similar criticisms of the Swedish legal system are based largely on myths and misconceptions. The framework of Sweden’s criminal law with respect to sexual offenses is no different from most other countries’. I will not be sentenced for rape if my condom breaks during a sexual act. But, like in many other countries, I can be convicted of rape if I have sex with a sleeping or unconscious person.

The Swedish judges who may preside if Assange is brought to trial will not take orders from any government agencies, and will not be influenced by pressure from elsewhere. Corruption in the Swedish judiciary is extremely low. We do have politically appointed laypersons as judges (similar to jurors) – a system about which I am critical – but they do not act as politicians in their judicial function, and studies suggest that their political beliefs do not influence their judgments at all.

Finally, no, the Swedish police will not place Assange on a CIA-chartered plane as soon as he arrives at Stockholm airport. They, like all other Swedish authorities, will discharge their duties according to the law.

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    1. CommentedRichard Prins

      "And it's why nothing triggers their rage like fundamental critiques of, and especially meaningful opposition to, the institutions of power to which they are unfailingly loyal."

    2. CommentedLutz Donnerbolzen

      There seems to be a twofold reason why so many commentators disagree so strongly with this article.

      First, the author is making a prediction about the future - "Assange will receive fair treatment by Swedish legal institutions". This kind of prediction is always hard to believe. I guess that a professor of Russian law at Moscow University would have said the same about the Pussy Riot trials beforehand.

      Second, the author is arguing about the moral integrity of institutions, without considering that he has no external point of view on this matter with which he is involved so closely. A professor of Iranian law at Teheran University would probably assure us in exactly the same way that it's a fact that "the Iranian court system is characterized by foreseeability, fairness, humanism, and high professional quality."

      When you're part of a moral system, your judgement about it will hardly matter to someone who is not involved, no matter how true, well-argued or convincing it may be. Even though we all probably (hopefully!) share most of the moral values of swedish institutions, it seems that there are some laws and values influenced by feminist attitudes involved in the Assange case, which are not shared by many people elsewhere.

      The fairness of such gender-related issue is always problematic and mostly based on moral values within a specific society, often hardly understandable for outsiders. What would have been defended as fair 50 years ago often seems outrageous nowadays. The fact (!) that in the Assange case are many people involved who openly declared themselves part of the feminist agenda makes the ideological basis of accusation and judgement highly suspicious to anyone who does not agree with the feminist values. This and the fact (!) that gender-related crimes, unlike many other crimes, are hardly based on hard evidence but more on feelings, personal memory and attitudes, makes the whole trial so explosive. If there were a feminist judge or jury who wanted to state an example on Assange on how all rapists should go to jail for a long time, it seems to me that they could easily do so within the boundaries of the Swedish juridical system.

      (I apologize for comparing Sweden to these totalitarian regimes in such a bland way, I'm pretty sure every reader knows that there IS in fact a huge difference between these countries, I just want to make a point why it is so easy to be skeptical about the authors position.)

        CommentedLutz Donnerbolzen

        Also, there have been reported many irregularities and acts against procedure or predecessor in the Assange case:

    3. CommentedJack Vaughn

      Does anyone know what Sweden's policy is regarding rendition requests by the USA?

      It would seem likely that any rendition request made by the US while he was in the UK, would risk failing, as he would be charged with espionage, which can carry the death penalty, and also because the trial would be at extreme risk of political interference after comments made by Intelligence officials.

      If Sweden were more willing to extradite Assange, then it makes sense to have him sent there first. It would also delay things further, so that he could be extradited after the US elections, and so avoid becoming an awkward election issue.

      Finally Professor Schultz, I am unaware of any justice system which is not in some way corrupt. If you genuinely believe that Sweden is the exception, I would very much like to understand what makes Swedish Judges so different from any other Judge in the world.

    4. CommentedOnanist Misanthrope

      The consensus of the replies to this article sees to be the article is dross ? Is the Professor suffering myopia over the system he is closely involved ? The replies would seem to indicate there is not really any thread of "truth" in it. It would seem that many systems in our democracies need a reboot from time to time, be they the "justice" system or the "economic" system, they appear unable to evolve to a higher state and instead become corrupted.

    5. CommentedJohan Kullingsjo

      A more sober viewpoint about Swedish justice can be read here:

    6. CommentedMatt Stillerman

      Dear Prof. Schultz,

      You write, "Before Assange was interrogated, he left the country. He then refused to return to Sweden, starting an almost two-year process to extradite him." This gives the impression that Mr. Assange fled from Sweden in the face of these accusations. The real sequence of events reveals a very different story.

      Julian Assange was interrogated by the police on August 31. He had already been cleared of the most serious charge, so this interview did not cover that. He also applied to reside in Sweden permanently. This request was denied on October 30. In early November, he applied for permission to leave Sweden, and this was granted. He went to the UK. On November 20, the Swedish court issued a warrant for his arrest, after he had left the country.

      So apparently, Mr. Assange cooperated with the police while he was in Sweden, left Sweden in good standing, and then offered to cooperate further once he was in the UK. The fact that Sweden has refused his good-faith offer of distant cooperation is prima facie evidence that they are not really interested in prosecuting him for these "crimes" but rather have some other motive.

        CommentedCatalin Hritcu

        @Kevin Lim: "Assange is accused of committing a crime on Swedish soil."
        No official charges have been made in Sweden against Julian Assange.

        CommentedKevin Lim

        Nonsense. Co-operation at a distance? What kind of meaningful police interrogation can be conducted at a distance? Many factors are at play in the exercise of prosecutorial discretion. Does the accused frequently change his story? What is his demeanour in describing the events? These questions and many others can only be meaningfully explored face-to-face. By contrast, co-operation at a distance invariably means that the only person the Swedish prosecutors will be interrogating are Mr Assange's lawyers.

        The Swedish legal system has never been impugned prior to this case. Assange is accused of committing a crime on Swedish soil. He should have submitted to Sweden's laws, and if he resists, then through the process of extradition he can be compelled.

        He like all men has a right to a presumption of innocence until proven guilty. But the corollary to that right is the duty to submit to legal process to determine if he is indeed guilty.

    7. CommentedNicklas Sundström

      I have absolutely no particular opinion about Mr Assange, Wikileaks or the allegations put forward against him, but this is simply not an honest objective description.

      "The Swedish court system is characterized by foreseeability, fairness, humanism, and high professional quality. These are facts."

      This is both dubious from a purely philosophical perspective, as well as a highly controversial statement today in regard to opinions of Swedes, both laypeople and practitioners within the legal system.

      That the Earth is round is a fact, that something is fair or has high quality are NOT.

      They are opinions, that will vary dependending upon comparision, perspective and in the eye of the beholder.

      And if I try put some of what Marten writes into a maybe more fair and balanced perspective,

      According to the offical statistics from 2011, only 52% of Swedes have high confidence in the courts, 51% in the prosecutors and only 41% in the correctional system. (NTU, Report 2012:2, "Om utsatthet, trygghet och förtroende", Bra) These are also significantly lower then corresponding measurements in the 1990s.

      "The Swedish judges who may preside if Assange is brought to trial will not take orders from any government agencies, and will not be influenced by pressure from elsewhere"

      In the District Courts (lowest courts) 2 of the 3 judges are "lay judges", and they ARE politically nominated, and the votes have equal value.

      In a big survey of all Court of Appeal Managers in Sweden published in June 2012 in Swedens biggest morning newspaper, SVD, 6 of 10 strongly critize this system, and want it abolished. Particularly damning is the opinion, that they view the current system as legally unsafe, and that the lay judges express a political ideology in their application of the law

      You can get the OP-ED here,

      And an further opinion piece here, by non other then Marten Schultz himselves...

      Some "real facts" are to the contrary, that the former Chancellor of Justice, Göran Lambertz, in 2009 published an investigation named "Wrongfully convicted", that revealed serious shortcomings in the Swedish legal systems, that among many other thing found

      * Inconclusive and weak evidence
      * The courts overlooking outright failures in the underlying investigations.
      * Insufficient examination of the plaintiffs stories

      In 11 cases studied, which had lead to convictions and later appeals and acquittal, 8 were related to sexual offenses.

      A summary of the Report and more details can be found here,

      So this was to my mind definatly not "all of the truth, and nothing but..."

      And then I have not mentioned the extrajudicial deportation of two egyptian asylum seekers on the 18th Dec 2001, Ahmed Agiza and Muhammad Alzery, after a request from the CIA.

      The United Nations' Human Rights Committee later found on November 10, 2006, that Sweden had violated the International Covenant on Civil an Political Rights.

      One can only with stupefied astonishment witness how people from all levels of our societies, from individual activists to professionals and political representatives, on both sides of this issue seems to loose all sense of proportion, sincerity and perspective in regard to Julian Assange and Wikileaks.

      Whilst one can have some degree of understanding in regard to civilian activist and supporters of JA, I do hold Marten Schultz and the political establishment to a much higher standard!

    8. Commentedtom longstaff

      Dear Prof Schultz,

      I am glad to have found a forum where, perhaps, some questions I have regarding Julian Assange's predicament might be answered. My Swedish friends here in Australia are too uncomfortable to talk about the issue. I would be very grateful if you could clear a few things up:

      1. Assange's fear is that he will be extradited to the US, you don't seem to address this. Why?

      2. As I understand it the first prosecutor approached declined to prosecute. My question is, if this is true, how common place is it to 'shop' for prosecutors in Sweden?

      3. You mentioned truths and half truths that you would return to later in your piece, it is not clear to me which these are. You don't seem to return to them.

      And finally,

      The Federal Police in Australia have confirmed, as I understand it, that the offences that he has been accused of committing in Sweden would are not offences in Australia. Can you please expand upon what he actually accused of? It seems, from an outsiders perspective, that Swedish law has defined rape so broadly that it denudes the term of meaning.

      I think I speak for many when I say that we are grateful that Wikileaks exposed war crimes and that he really deserves much more than vague promises of being treated 'fairly' by your justice system.