To which
extent the Swedish institution of Lay Judges would influence the course
of events in a possible trial against Julian Assange?
Justitia. Acrylic in canvas, Ferrada de Noli, 2003
Lay
judges in Sweden is an institution from the Middle ages. Such judges
are supposed to represent the people, concretely, the people's "sense"
of justice in the courts. However, the first democratic paradox is that
these judges ARE NOT elected by the people but instead designated
separately by some political parties among their militants -- which are in any case, all parties considered, only less than 2.9 percent of the population of Sweden! (see further below, item 4 on democracy issues). These
judges intervene together with a professional judge in the assessments,
judgment and verdict of cases in the Swedish courts. There is however
an increasing conclusion, latest summarized in an article today in Svenska Dagbladet by Daniel Person, that "Lay judges have a tendency to judge according to their political affiliation" [2].
Aftonbladet, another main Swedish newspaper, publishes today 20 February an editorial-article by Eva Franchell containing remarkable revelations [3], also commented in DN:
- More than 200 lay judges have been the subject for criminal investigations in Sweden;
- Twenty-five convicted lay judges have continue act as judges in Swedish courts in the last years.
- Nearly half of the lay judges are retired individuals (over age 65). Have these lay-judge appointments been converted in a end-of-career chairs for politicians, by politicians?
Analysis*
by Marcello Ferrada de Noli
Disclaimer on the opinions in this article about juridical issues:
I
have understanding for certain protests that diverse juridical-educated
academics have raise, about the treating of issues on the Swedish legal
system in connection to the Assange case in an irrelevant
manner. For it looks more as if these individuals would using the "case
Assange" to throw away animosity against some Swedish institutions for
other purposes, or based in other reasons. The subject has been perhaps too often treated in a sensationalistic tune, or using attacks ad hominem
– some of them quite passionate, some others straight vulgar - but with
little factual substance or much absence of juridical knowledge. There
have been as well several such libellous attacks
in the main stream media against Julian Assange or his supporters,
actions that compromise professional journalism. Nevertheless, I firmly
believe that any kind of articles or comments delivered without the
basic requirement of relevancy, may end producing among the public more
antipathy than sympathy towards the causes we put forward, or defend.
Like this one of justice for WikiLeaks and of its founder Julian
Assange.
Human
Rights experts, and serious Human Rights activists in the professions
of journalism, do have the academic education and the professional
experience as to properly examine those issues related to the judiciary
system. Example of these expertise, by which Professors blog
have taken proud in presenting to its readers, are Human Rights lawyers
Jennifer Robinson and Andrew Kreig, and Human Right activist and
journalist Naomi Wolf.
1
During
a second interview I gave recently in Stockholm for the TV network RT –
aimed to Arabic speaking audiences – the journalist opened with this
straight question, approximately in this formulation:
- “What would happen to Julian Assange at arrival in Sweden if extradited from UK?”
The
question demanded an equally straight answer, no space for
argumentation, and I had to think faster than reasoning. For which I did
answer – as usually happens in such circumstances - with pictures I got
spontaneously in mind.
I
saw Julian Assange incommunicado in a tiny cell that is frequently
visited or controlled – and for which I imagine he will be deprived of
rest, of continuous sleep.
And
I saw him answering questions posed originally in a language he does
not understand. This led me to imagine he was in court. And this means
in his case in a secret trial behind close doors. Defended by a lawyer
for whom it was forbidden to tell the press about all the investigations details he may know, “in possession” by the prosecutor.
I
saw finally Julian Assange been judged by a team consisting of lay
judges appointed by political parties and professional judges. And I
though in the actual stands of the main political parties in Sweden with
regard to WikiLeaks and Assange. And I thought what are the
possibilities for Julian Assange – thinking in precedence of trials of
that kind - to be judged guilty even if no substantial evidence is
presented against him.
Why did I first
get those pictures like in a film-reel? Because they remind me so
vividly my experiences under the fascist regime of Pinochet, with
politically appointed judges, incommunicado arresting system, and trials
behind close doors, and guilty verdict without the need of substantial
evidence.
It was then when I decided to write these comments.
2
Of
course Sweden - with monarchy and all - is to be regarded as a full
democracy; Pinochet regime was a full dictatorship. In fact, the only
real similitude between those two governments is the under positioning
towards USA strategic interests. But this is NOT a tiny detail.
We already know that a Grand Jury in the U.S. is preparing a case against the WikiLeaks founder. According
to a recent interview with Julian Assange and lawyers Jennifer Robinson
and Geoffrey Robertson [1], the USA shall most certain seek the
extradition of the Wikileaks founder. The reason - as mentioned in the
interview - being that a US Grand Jury investigation has been on-going
in Washington since last year - preparing aggravating charges on
espionage. Such charges, most likely in connection with the Wikileaks
Pentagon-disclosures, would entail for Julian Assange "up to ten-years
in a maximum security prison", according to the legal experts.
Meanwhile, a recurrent misconception - or deliberately misinformation -
published in the international media, is to consider the deportation of
Julian Assange from Sweden to the USA as, statistically speaking,
"highly unlikely".
Lay judges. . .
Both
in the Pinochet dictatorship and in the democratic Sweden lay judges
are appointed politically. In Pinochet's Chile the right-wing political
force in power was represented by the Military Junta itself. The
military have achieved government office by force of a putsh supported
by all the right-wing political parties and implemented with
participation of the CIA. Lay judges, which participated in courts
eventually with professional judges or also law-school educated
officers, were often military officers from the "ranks".
First important aspect: in Sweden lay judges ARE used in criminal-law cases
According to the common notion, lay judges are used in some civil law [4].
This last "universal" notion has conveyed that the lay-judges issue has
not being considered important in the international discussion over the
Assange case.
Nevertheless, in Sweden lay judges are used in the judging of criminal-law cases. And, according to Swedish legislation, this is the offence-typification
implied in the accusations against Julian Assange. We have in Sweden
District courts, Court of Appeals, and the Supreme Court. Lay judges are
used more extensively in the District courts.
Second important aspect: in Sweden lay judges are not assessors, they ARE JUDGING
The common understanding, or usual notion of “lay judge”, it refers to an individual
assisting a judge in a trial, [4] meaning that these lay judges would
have a purely "assessor" role. The Wikipedia article on the Judicial System of Sweden is
not clear - or misgiving - regarding this issue. Although it firmly
states that these judges are only "assesors", and that they are not used
in civil-law cases, the article omitted saying that Swedish lay judges
are instead used in criminal cases, and that their role is to judge.
So,
even if the role of lay judges in other countries is commonly the one
of assessor in civil-law cases, in Sweden however that IS NOT the case.
In such Swedish District courts, there are up to three lay judges in the court cases. They participate in the judging with the same judging prerogatives
than the professional (career) judge/s. And this is the type of court
that Julian Assange would be facing if prosecutors decide to take the
case into court.
Third important aspect: Political affiliation DOES MATTER in the judging and verdict outcome
As statetd initially, "lay judges have a tendency to judge according to their political affiliation"
There
is a widespread error on that if a Swedish prosecutor do not have
enough evidence will not present the case to court. From that
assumption, long discussions have been conducted in international and
Swedish forums examining the validity or presumably existence of
"evidence material" from the part of the prosecutor's side in the
Assange case. These discussions aim to elucidate whether "there the
prosecutor has enough material", and trying to anticipate whether
charges will be made or not, and thus the question of trial or
not-trial. But the truth is, that ultimately, a prosecutor in Sweden has
the privilege to present a case in court, regardless. Is the
prosecutor's side which would decide after own assessment whether the
case "is worth" to be taken to court.
One consequence of this would be for Assange, that if this would happen - that is in under trial - he may be
further subject of other (juridical) eventualities regarding
prospective demands of extradition or "interrogations" by another
country.
The equation "Low/absence of substantial evidence and political-minded judging"
Yet, the main concern in this scenario - the worst odds, according to precedent (see below the Beltrán case) - is if the
absence of substantial evidence would lead that emphases are instead
placed in circumstantial evidence, or "testimony evidence". In this
situation, what would be examined are subjective factors in relation
with the case. In all this judgments the political factor is relevant to
say the least, and also can be determinant. What other factors
associated with the case? For instance:
In February 2011, referring to the Swedish case against Assange, Prime Minister Fredrik Reinfeldt declared publicly: [5]
“I
can only regret that women’s rights and status weighs that light
regarding these types of issues, in comparison with other type of
theories put forward.”
[”–
Jag kan bara beklaga att kvinnors rätt och ställning väger så lätt när
det gäller den här typen av frågor jämfört med andra typer av teorier
som förs fram”].
Prime Minister Reinfeldt
again, a year later, the 25 of January 2012 made similar interferences
in the legal case, appealing of national sentiment in the sense that i
sthe prestige of Swedish legislation in theses regards what is at stake.
I have previously analyzed these declarations of Prime Minister in " Swedish government using media to interfere in the legal process against Julian Assange":
The program leader, journalist Andres Holmberg, asked finally Sweden’s Prime Minister:
-
“Is it a problem for you Fredrik Reinfeldt, or for Sweden, that this
type of descriptions emerges about Sweden, in the international press: A
judicial banana republic?”
The Prime Minister of Sweden:
-
“It is very often a method one uses, to try discrediting a country or a
judicial system when one stands prosecuted (anklagad, again!) of a
crime in other country.”
-
“We have naturally to stand up for we have a functioning legal state
and also we take very seriously prosecutions that have to do with rape
because there are also ingredients aiming to diminish how we have
developed, and stand for, a good legislation in this case.” [6]
Political
appointed judges, that "have a tendency to judge according political
affiliation" are most likely to follow the line of Sweden's Prime
Minister, on that this case against Assange is also a case of the
political prestige of Sweden internationally, a mater of demonstrating
how modern legislation we have on these issues.
And this not to mention the Assange case as symbol for rigth-wing radical feminists, whose party comrades may be also in the conmposition of the lay judging team.
3
A precedent. The Beltrán case: In absence of hard evidence, judging guilty in the solely base of "finding the plaintiff's story credible"
Other democracy issues in the Swedish Lay Judges system
Lawyers Thomas Bodström and Claes Borgström (Bodström & Borgsträm Law Firm)
One
of these cases was the sentence to prison against the Chilean political
refugee Tito Beltran – also a worldwide celebrity as opera tenor -
accused of rape on the basis of a Swedish woman's declaration made nine
years after the episode in reference. No evidence was needed. The lawyer
of the woman-accuser who obtained the sentence was the social
democratic politician and former minister of Justice Thomas Bodström,
mentioned above. This politician is the partner of the law-firm Bodström
& Borgström that nominally pursue the case against Julian
Assange.
The verdict stated: "According
to this court, we found the plaintiff's story credible and that fully
meets the requirements to form the basis for a conviction". [7]
The
lawyer defending the plaintiff was the social democratic politician and
former minister of Justice Thomas Bodström. The "evidence" mentioned
later in the verdict against Beltrán referred to declarations of two
friends of the plaintiff which would "have heard" an account from the
part of the plaintiff after the alleged happenings. Also in this
case, it was not the plaintiff who have made a complaint to the police
against Beltrán. It was another woman (Monica Dahlström-Lannes, known in
Sweden as activist and campaigner concerning sexual-offence cases) who
after her own private investigations and interviews on the case filed
the complaint to the police - nine years after!
Dahlström-Lannes
was a board-member of the same organization, ECPAC, in which the
social democratic politician and former minister of Justice Thomas
Bodström was also a board-member. However, Bodström denied in the court hearings that he knew Dahlström-Lannes.
4
Other democracy issues in the Swedish Lay Judges system
Lay
judges in Sweden are an institution from the Middle ages. Such judges
are supposed to represent the people, concretely, the people's "sense"
of justice in the courts. However, the first democratic paradox is that
these judges ARE NOT elected by the people but instead designated
separately by some political parties.
And
in their turn, the political parties pickup the Lay Judges candidates
from their party ranks. However, in spite of the population of Sweden
being approximately nine millions (9 316 256), the total individuals
affiliated to the Swedish political parties is only approximately a
quart of a million (269 208).
This means that the population relevant for the "democratic" representation by these politically appointed lay judges is actual only less than the 2.9 percent of total Swedish population.
Since available figures for the political affiliations are from 2009, I have used in the statistical calculation the population figures of that same year. In fact, this difference is now increasing, as the population grows while individuals affiliated in political parties tends to diminish notably.
This means that the population relevant for the "democratic" representation by these politically appointed lay judges is actual only less than the 2.9 percent of total Swedish population.
Since available figures for the political affiliations are from 2009, I have used in the statistical calculation the population figures of that same year. In fact, this difference is now increasing, as the population grows while individuals affiliated in political parties tends to diminish notably.
This
in turn poses another "democratic" related problem, since such
"elections" done in the Swedish political parties correspond in reality
to a "selection", a "co-optation" done by the top leading circles in
such parties. in the best of cases this is done through "Proposition
boards" (called some times Valberednings grupp), also at top-levels in the parties hierarchies. In concrete:
A direct election of Lay Judges by the Swedish voters simply does not take place. That these judges "represent the people" it is simply not true. What they do represent instead is the political parties that have nominated them.
A direct election of Lay Judges by the Swedish voters simply does not take place. That these judges "represent the people" it is simply not true. What they do represent instead is the political parties that have nominated them.
Further,
another problem such system has with "democracy", is that only the
political parties that have reached an arbitrarily stipulated
statistical value which is decided by the ruling parties (nowadays the stipulated value is >4 percent of the voters). Important political parties such as The Pirate Party -
which otherwise has representation in the European Parliament) has
been deprived with such formula of forming part of the lay-judges
selection club.
Another issue with regard to democracy, is that although these lay judges are supposed to represent the people at large
in the Swedish courts, most of the lay judges are retired bureaucrats
or else -- of older age. In this sense they hardly wold represent the
Swedish people, only a limited age cohort.
The above aspect is also significant for the final political equation at the courts, since people of older age tend to see issues - politics inclusive - in a different way that younger generations does (e.g. the novel Pirate Party).
What professional/career members of the Swedish Judiciary think on the Lay Judges system?
In a survey conducted
by SvT among 675 career judges accepting to reply, only 28 percent had
the opinion that the system of lay judges should be abolished. While 30
percent was negative to that lay judges are politically appointed. [6]
Some other important related observations about the Swedish legal system in the context of the "case Assange"
- Sweden has a judiciary system in which judges participating in the courts are appointed by the political parties (there is not Jury-system in Sweden, neither exists in Sweden the institution of bail).
- Sweden allows secret, "close-doors" trials. Particularly with regard to sexual-offences trials in which case secret trials is the most common form to be used in the Swedish system of justice.
- The number of appeals in Sweden has been notably reduced after a law of 2008 (the so called EMR reform) devised to curve down the number of cases resulting on appealing at higher courts.
- In the Swedish case against Assange the police investigators conducted interrogations without video-recording, sound-tape recording or other form of transcription. This is an aggravating anomaly and which infringed clear standard proceedings as instructed by the Police Authority with regard to cases involved suspicions of rape.
- The interrogation of one of the nominal accusers was performed by a police officer friend of the other nominal accuser.
- The interrogation of Julian Assange could have very well have conducted in Sweden but the prosecutor chosen to issue an Interpol warrant what it made possible the fabrication of an extradition case.
- The law-firm defending the accusers is co-owned by a politician member of the very same political group within the Swedish Social democratic party, Mr. Thomas Bodström (former Minister of Justice) and in which the accuser AA was at the time of the accusation the political secretary.
- The actual lawyer appointed by the firm (the other co-owner of the law firm) is Mr. Claes Bogström, which, together with the prosecutor of the case Ms. Marianne Ny, and together with the former Minister of Justice and chairman of the Justice Committee of the Swedish Parliament Mr. Thomas Bodström participated in the study of the new legislation which radicalized the proceedings and penalties for sexual-offences in Sweden.
- Mr. Thomas Bodström was the main politician - apart of the former Prime Minister Göran Persson - signalled around the agreements with CIA on the rendition of political refugees in Sweden to be transported to torture elsewhere. For that he was called upon the Swedish Constitutional Committee. The Swedish political parties however, as well as the mainstream media, did never really condemn such behaviour.
References
[1] Foreign
Correspondent Andrew Fowler's interview with lawyer Jennifer Robinson,
Journalist/Publisher Julian Assange and lawyer Geoffrey Robertson. The
interview has been recently aired by Youtube. Follow this link to see the interview.
[2] SvD Opinion, 20 Feb 2012 http://blog.svd.se/ledarbloggen/2012/02/20/straffade-eller-ej-%E2%80%93-namndemannen-bor-ifragasattas/
[2] SvD Opinion, 20 Feb 2012 http://blog.svd.se/ledarbloggen/2012/02/20/straffade-eller-ej-%E2%80%93-namndemannen-bor-ifragasattas/
[3] "Politikerna som struntar i lagen". Aftonbladet, 20 Feb 2012 http://www.aftonbladet.se/ledare/article14399246.ab
[4] "Lay Judge". Wikipedia article http://en.wikipedia.org/wiki/Lay_judge
[5] DN http://www.dn.se/nyheter/varlden/reinfeldt-beklagade-negativ-bild-av-rattsvasendet
[6] http://sverigesradio.se/sida/artikel.aspx?programid=1637&artikel=4928323
[7] http://www.aftonbladet.se/nyheter/article11904361.ab
[7] http://www.aftonbladet.se/nyheter/article11904361.ab
[8] "RÅ: Nämndemannasystem bör förändras". SvD 24 Jan 2012 http://www.svd.se/nyheter/inrikes/ra-namndemannasystem-bor-forandras_6794667.svd
*This text is a part of the analysis Sweden: POLITICALLY appointed lay judges to JUDGE Assange
published in Professors blogg 21 February 2012
Wikileaks, J Assange, Assange, yttrandehefrihet, tryckfrihet, transperans, Piratpartiet, PP, tryckfrihet, wikileaks, intressant, pressetik
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