The logic here is, Because [THE US MISTREATED BRADLEY MANNING], therefore [SWEDEN WILL NOT FOLLOW EUROPEAN LAW WITH REGARDS TO EXTRADITION]. Non sequitur.
>The logic here is, Because [THE US MISTREATED BRADLEY MANNING], therefore [SWEDEN WILL NOT FOLLOW EUROPEAN LAW WITH REGARDS TO EXTRADITION]. Non sequitur.
The US punitive pre-trial treatment of Manning indicates that the matter is of sufficient concern that they're willing to endure international criticism for the sake of making an example out of him. If Sweden will do America's bidding over a commercial copyright matter, it seems quite possible they will also do so for what the US characterizes as a national security matter. As we saw with the MegaUpload incident the US doesn't let little things like the law stand in the way of it defending its interests.
The fact that the UK is flirting with violating the Vienna Convention over a "rape" case says a lot about this situation. In the 80's Libyans shot a British policewoman dead from their embassy and the UK didn't raid the embassy.
No, that's a straw man. The logic is: because the U.S. has a track record of punishing people deemed by the executive branch as threats to national security without due process of law (up to and including summary execution of its own citizens without so much as a formal charge -- e.g. Anwar Al Awlaki) it is not unreasonable for Assange to suppose that he might also be subject to such treatment if he happens to fall under the physical control of the U.S. or one of its vassal states. IMHO this fear is not entirely unjustified.
But then the question becomes: why would he be more vulnerable in Sweden than in the UK? The linked article argues that he is more vulnerable to extradition to the US in the UK. I buy that argument. What is your argument that he would be more vulnerable in Sweden?
There is an opportunity cost in the US attacking Assange. It's pretty clear that they couldn't "just do it": international condemnation would be huge. So they have to discredit him first; once he's "fallen" and not under the spotlight, then it will be much easier.
Extraditing him now, from the UK, would be seen as a brazen attack on civil liberties, press freedom and whistleblowing, hitting front-pages hard. Extraditing him after he's already been convicted by another country on character-smearing charges would be a page-ten item. (Also, it's an electoral year in the US, and Obama has enough problems with his own base as it is.)
To be honest, their current strategy is working wonders: the entirety of mainstream press (and not just them, even people who should know better like Amnesty International) has clearly decided he's a twat and does not deserve being defended. They are now covering these proceedings as a soap-opera in which he's a delirious dostoevskjian character running like a headless chicken. It doesn't seem to matter that a (idiotic) British government is so angered that is threatening to destroy the holiest diplomatic principle of them all.
Even assuming Assange is guilty, the current position of the Foreign Secretary, Rt. Hon. William Hague (Conservatives) is so appallingly overboard that either he's a complete nutter/idiot/incompetent hack (which he might as well be, to be fair, despite his first-class grammar-school education), or there's more to this story than a common case of rape.
Yours, olifante's and others' arguments for why Assange is more vulnerable in Sweden, as far as I can tell, are basically: "because I can concoct a scenario in which it is so." That is, it's based on speculation, not evidence.
In other words, it's a standard conspiracy theory.
Sweden is a huge country with very low population density and one of its neighbors is Russia, a formidable military power. This means it is very dependent on the US for its security, and more likely to be vulnerable to explicit or implicit pressure from the US than an island nation of 60 million people that is also a nuclear power.
I'm convinced this is also the case with Australia, which is why they're so unwilling to stand up for Assange.
They don't actually share a border with Russia, were never part of Russia or the USSR and are part of the EU. There's zero chance of the Russians invading.
You do realise the British nukes are Polaris missiles bought from and serviced by the United States, correct? Put blunt, the UK wouldn't be a nuclear power right now if the US didn't sell them ICBMs.
I believe the "special relationship" between the US and the UK would still stand if the US asked for an Australian to be extradited from the UK to the US. The British just extradited O'Dwyer to the US for civil offences. Assange would most likely be charged under the US Espionage Act, which is a criminal offence.
The logic here is that the detention of Bradley Manning without due process for two years in inhuman conditions along with pressure made to Visa, Mastercard and Paypal to halt payment processing to Wikileaks (later found illegal), whatever they pulled to make amazon stop hosting Wikileaks, the potentially government sponsored DDOS attacks, the fact that UK is thinking about violating the Vienna Convention over a minor criminal charge suggest that "the US" (whatever that means) seem to not have qualms about going beyond legality to make an example of Assange.
It does sound like a conspiracy theory that the US would do that but so many things that sound like a conspiracy theory have happened around this case that it is no longer a valid proxy for truth.
Another interesting tidbit is that Assange is only sought by Sweden for questioning and has not been formally charged.
... and stopped reading. Assange is wanted for arrest --- it's an EAW we're discussing, after all --- and can't normally charge him until they have done so.
There are lots of great comments on Reddit, for whatever it's worth.
> it's an EAW we're discussing, after all --- and can't normally charge him until they have done so.
You keep repeating this, and people keep demonstrating that it is untrue.
Edit: And just to be clear, you believe you know more about this than a constitutional law prof from the EU (the author of the reddit comment), correct?
Huh ? Where ? I've seen one intent to show it's untrue (in this thread) and honestly the arguments where bogus.
I don't know Swedish law at all. But actually in French law (my domain of study) in a criminal case assigned to a "Juge d'instruction" (who acts more or less like a prosecutor), no indictment ("mise en examen") is possible without a physical presentation to the "Juge d'Instruction".
So I know of at least One other set of laws where the idea that someone cannot be charged without a formal presentation to the "prosecutor" is a fact, so it's not unthinkable that the Swedish law can be similar in that matter. And you will need more than : "No it's not true" to convince me that three consecutives Courts including a High Court made a mistake on this point.
Edit about your edit : I think that your argument of authority is invalidated by the presence of three decisions by UK courts that took their decisions after hearing counsels and legal experts on both sides of the question.
Yes, and the EU court determined that such a requirement does not waive the right to appeal a sentence. Which means somebody can actually be charged in absentia without legal repercussions, so it doesn't really matter whether they're present or not. From what I've heard, France is currently changing its system to reflect these rulings.
Btw, your own appeal to authority is pointless: I'm sure the courts of China are also always right in their decisions.
We're all human, we all make mistakes, we all suffer from external pressures. The UK High Court is as highly politicised as any similar body around the world, and has quite an appalling record on civil liberties in general (from libel laws to Pinochet). It's not unthinkable that they might have ruled as they did because the UK establishment is aligned to US interests -- they are even adopting names from the US system! We now have a Supreme Court and a number of Secretaires who used to be Ministers...
I'm not sure about what you're saying... but if you're saying that the fact that ECHR considers judgments in absentia to be of no legal repercussions... means that a State can pursue charges in absentia even more easily... well... I think, in my understanding of Law, that you are wrong. It means that pursuing charges in absentia... is of no legal repercussions (duh). So the accused is entitled a right to a full fresh re-trial... not an appeal. Because it's like if nothing was done. That's why States try to avoid this... It's waste of ressources, because a sentence is of no use... Anyway there is going to be a full retrial of the first instance.
And there is a lot of things changing in French procedural law... but this is not changing. Judges of Instructions are not considered against ECHR and the rule that make it a requiremnt to present a suspect before the judge before any indictment... is actually more respectful of ECHR law than otherwise (see. 5.3 of the European convention on Human Rights).
And btw you know, China is not the UK or Sweden...
Oh and please ? Are you serious about the "adopting names from the US System" isn't that a proof of submission !" No it's not...
> The French penal procedure used to demand similarly that a suspect should surrender and go to prison on the eve of his criminal trial. The European Court consistently found this a violation of 6§1 in a string of cases (Omar, Guerin, Khalfoui, Goth, Papon, Coste, Morel, Walser, etc.) that eventually managed to have the French law amended. There is not much wiggle room here: Assange has a fundamental right to be questioned by the prosecutors without having to surrender to Swedish police.
And of course UK and Sweden are not China, but please point me to the law that says they will never become like China; in the UK, there isn't even a codified right to freedom of speech as it is, as witnessed by the horrendous libel laws. In any case, the US-led program of "extraordinary renditions", which was carried out by UK and Sweden in earnest, is not very different from what a Chinese government would enact; nor are the kangaroo courts that will judge (maybe, one day, if they ever feel like) Pvt. Manning, or the "legal acts" that put people in Guantanamo indefinitely and without due process. There are no "good governments" or "bad governments", they're all different shades of grey and they change with the times.
(Btw, I'm sorry that you fail to appreciate the extent of the current state of the "special relationship", but I can ensure you that it's really troubling. In the last 15 years, US foreign policy has been enacted without fail by successive UK governments, and the encroachment of US-born ethos and culture on British public discourse has been relentless. We joke of becoming "Air-Strip One", when in fact we're basically already there.)
Well. You actually cast some doubts on my knowledge of French procedural law... so since, France is a civil law country I went to the Code de Procédure Pénale. So small class about what happen when a Judge d'Instruction (which in France is an independent judge who is charged of preparing the case to be judged in a formal court. But only on serious crimes affairs, or when it's a complex affair. So it's like an "expert" prosecutor for serious cases which job is not to actually prosecute... but to really gather the evidence for a fair trial (he has the mission of searching evidences for and against the suspect) I will use JI to refer to this judge) want to speak to someone.
3 cases :
1 - The person is not seriously suspected of being the perpetrator of the crime investigated. He can be forced to present itself to the JI if the JI wants it. Then he will be considered a witness. This is Art. 101 of the CPP (Code of Penal Procedure) In the case of an external impossibility (meaning that it's not just the guy not wanting to come) the JI can actually go to the witness or hear the witness by any mean (Art. 109 CPP). So even if you are a just a witness you can be forced to come.
2 - An assisted witness Art.113-1 CPP (that's when there is some possibility that you are going to be indicted because you are a suspect), the difference is that an assisted witness has the right to have a lawyer, more rights etc.
If you have been identified at least by name by the victim, then you must at least be this. So at least. Assange would have been an assisted witness. It's true that an assisted witness has the right to ask is own indictment, and the JI must comply (Art. 113-6 CPP). BUT, to have the assisted witness status you must have been heard at least once by the JI. Force can still be used to present to assisted witness to the JI, and in case of impossibility etc. etc.
3 - Indicted (Mise en examen). A lot of rights, but also much much much more power to the JI investigating the case. And well, the indictment defined at the 80-1 and 80-2 CPP is quite clearly possible after a face to face interview between the JI and the suspect : Translation by myself "The indictment can only happen after the first interview of the person in front of the JI"...
I could go on explaining the fine details of this law... but I think you got the picture.
Oh, and about your "string of cases"... I'm really sorry to say it... but you totally misinterpreting them. I mean... radically.
See Walser v. France => The problem was that the plaintiff in this case was arrested to be presented to a JI, she (the plaintiff) was then held in custody of the police for more than the legal 48h (58:30 actually) and the only had her first meeting with the JI and was then indicted, benefiting of all rights and protections of the indicted (a lawyer, access to the role of events and her own file etc.). The ECHR says it right away, the problem was the lack of due diligence by the police, not the arrest in itself. The European Judges said that the maximum time to be detained before a presentation to a prosecutor is 48h outside of extraordinary situation (Like the case I cited of Medvedyev v. France, where since it was an extraordinary situation (Medvedyev and all where caught in the middle of the ocean 10 days away from the nearest French coast, so they said that since they where presented right away to a judge after landing, it was legal).
So clearly the Good Court of Strasbourg is not objecting the fact that the suspect was forced to surrender to French police to be then questioned by the Judges and Prosecutors. The Wise Court is saying that police waited too long and thus abused authority. And French law was modified accordingly, creating the articles 803-2 803-3 in the CPP saying that the suspect must be presented in the legal time and quicker possible.
Oh... but maybe you're referring something happening at a totally different moment in the procedure. Yeah... you know, the act of surrender as a prisoner... just before a supreme court trial if, and only if he had been judged guilty by the appellate court. Nothing to do with the indictment, the investigation and everything. It's only that French law required that if an appellate court said you were guilty and sentenced you to a prison sentence, then you had to first go beyond bars to be able to require an appeal in front of the supreme court. This element of law has been deleted of French law in 2000, yes. But has nothing at all to do with the present case. And as I show, the Court is perfectly fine with authorizing the police to arrest people so they can be presented to a judge to be indicted and then investigated, which is exactly what is going on here with Assange... This cases are filled in the Access to a Tribunal Rights at the ECHR books, not the rights of persons being investigated.
TL;DR:
Omar and etc. are cases concerning the fact that in France before 2000 if you where sentenced to prison by an appellate court, you had to surrender yourself to the police in order to be able to appeal to the Supreme Court. If you were on the run, your lawyer couldn't file an appeal to the Supreme. But this has nothing to do with the present case. Since Assange already filed complaints in Sweden about decisions by the prosecutors and etc. And the ECHR is perfectly fine with an arrest in investigations, provided it is to present the suspect to a prosecutor or judge (and some other cases also).
Finally : Assange has a fundamental right to file appeal even if he is on the run. But the prosecutors have the right to ask police to bring Assange by force if he denies coming willingly.
----
Now speaking of the other comments you made :
----
On the subject of respect of the rule of law by Sweden and UK, you are right. Nothing impedes UK and Sweden than become worse than China on that matter. BUT, frankly... that kind of thing does not happen out of the blue. Guantanomo and Pvt Manning is out of scope, that's US, and we both agree that Justice in the US is quite needing in everything that concerns """"National Security"""". We are speaking of Sweden and UK here.
Oh and... about the special relationship... sooo if this relationship is so special... and since, I pretty sure Sweden's relationship with US is not at allll that special, why the hell would he be afraid of going to Sweden to be extradicted to the US ?
The author of the reddit comment says something about that:
Assange is only sought by Sweden for questioning and has
not been formally charged. While the British High Court
has decided that the current advancement of the Swedish
procedure is equivalent to being charged in the UK, I
consider this ruling to be an aberration; the common-law
steeped High Court failed to understand a finer point of
the civil-law influenced Swedish penal procedure.
This, directly from the Swedish High Court ruling, contradicts that:
"7. According to Swedish law, a formal decision to indict may not be
taken at the stage that the criminal process is currently at. Julian
Assange's case is currently at the stage of "preliminary investigation".
It will only be concluded when Julian Assange is surrendered to Sweden
and has been interrogated.
- Assange is not charged (yet) and the High Court is wrong
on that point
- Assange has a fundamental right clearly recognized by
the ECHR not to surrender to Swedish police before
appearing in front of the Swedish prosecutor
- The Swedish Prosecution Service has consistently refused
to promise that Assange wouldn't be extradited to the US
once in Swedish custody; this type of promise is common
in extradition cases and within the power of the Swedish
prosecution service
- The Swedish Prosecution Service has refused the
opportunity to question Assange through videoconference,
while insisting on Assange's surrender to Swedish
custody; this is a clear and known violation of the ECHR
that the Swedish prosecutors can't ignore.
There's only one possible conclusion:
the Swedish prosecutors are acting in bad faith here.
" - Assange has a fundamental right clearly recognized by
the ECHR not to surrender to Swedish police before
appearing in front of the Swedish prosecutor"
I don't know about the rest, but of what I know of ECHR (which is not nothing, being a student in law in an european country), this is false. The ECHR actually rendered a decision about this in an affair concerning France (a very important affair that is changing a lot in procedural French law so it's troughtfully studied here in France). It's the case Medvedyev v. France (29 mars 2010 (yes it's that recent)). In this case a group of men were arrested in High Sea, by police, and they were then under arrest for days before appearing in front of a prosecutor. They contested this as contrary to their human rights to not be held under arrest without presentation in front of a judge. And they lost... (they lost on this point, they won other ones in the case) because the police did everything they could to actually be as fast as possible, so the article 5.3 of the ECHR was respected.
So Assange has a fundamental right to be presented to a judge/prosecutor before any arrest. BUT, he can be forced to appear in front of the judge. And he has no right to resist being arrested if this arrest has the sole purpose of putting him in front of a Swedish prosecutor.
So well... You know.. if this guy is wrong about one of the most important decisions by the ECHR in the last 10 years, then I tend to think that he may be wrong about other things he says with such "confidence".
* The Swedish High Court held specifically that Assange cannot be charged at this stage of the process; under Swedish law, with a domestic arrest warrant issued, he must first be arrested and face his prosecutor.
* The Swedish High Court specifically considered the videoconference option, which is not required under the ECHR, and, at the level of the High Court and consistant with the demands of the prosecution, rejected it: he needs to be questioned in person, and, depending on his responses to questioning, the Swedish may need to employ physical forensic science (as they would in any rape case).
* Swedish law requires the Prosecutor General to evaluate extradition requests on a case-by-case basis; under Swedish law, the government cannot offer Assange a blanket protection from extradition to the US. Incidentally, if this type of promise is common, I'd point out that the examples of it seem to have eluded the press; can you provide any yourself?
Most of these issues are helpfully excerpted by the author of this particular column from the Swedish High Court opinion upholding the EAW. You don't even have to search for it, or read the whole opinion.
What Assange wants is not a decision from Sweden's
government, but a promise from Sweden's prosecutors [...].
The Swedish Prosecution Service has consistently refused
to promise that Assange wouldn't be extradited to the US
once in Swedish custody; this type of promise is common
in extradition cases and within the power of the Swedish
prosecution service
You're repeating the same assertion I questioned, verbatim. The author of this blog post quotes an article that itself quotes practically chapter and verse for why this type of promise is not feasible under Swedish law. I then said, if these promises were common, surely there's an example to be found of them somewhere.
This may be difficult for you to hear tptacek, but the world doesn't run on logic.
If you want to survive, you have to join the dots. People lie. People cheat. And if you fail to infer their motives from their actions, then you will be eaten alive.
