Monday, April 08, 2013

Government-sponsored presentation of Supreme Court judge in Australia increased doubts on Swedish legal system

Although international media widely reported that “Stefan Lindskog was critical of the Swedish criminal investigation”, his public lecture in Adelaide - sponsored by the Swedish Foreign Office - was in the main an attempt to recover trust in the Swedish management of the Assange case. He said it is feasible to proceed with the interrogation Assange in London, and also while acknowledging that illegal extraditions to the US by the government occurred in Sweden, he declared he has the “hope” it will not be the case with Julian Assange. The risk for the extradition of Julian Assange to the US continues unabated.


by Marcello Ferrada de Noli

After the PR-event in Adelaide sponsored by the Swedish Ministry of Foreign Affairs, AAP ran a cable with the headline “Assange safe from extradition in Sweden, judge suggests[1]. But this “breaking news” - a direct challenge to Mr. Assange’s claim on the risk he would face if sent to Sweden – it was hardly a fair interpretation of Judge Lindskog’s publicized speech at Adelaide Law School. The PR-coup, which was media-dramaturgy reinforced with a cable purporting Lindskog was critical to the Swedish procedures (published by a variety of media, from Stars & Stripes to Aljazeera) [2], is sourced in an ambiguous text on the extradition issue prepared in advance and read by Justice Stefan Lindskog, for which presentation a live stream and video was made.

However, the actual declarations of Lindskog in the panel that ensued – where he acknowledges that illegal extraditions to the US ordered by the government have occurred in Sweden, and that he has the “hope” it will not be the case Assange - remained unknown to the international public and journalists, for it was not sent live nor video-recorded or shared by the sponsors of the event.

Nevertheless, I have received partly a copy of the audio recording sent to me personally by Australian documentary-maker Catherine Vogan, who has reviewed materials directly recorded by the public in Adelaide[3], and partly details sent to me by Ken Sievers[4], who was attending the event and made the first question to Judge Lindskog.

This is my transcription of the audio recording:

Question at the end of the lecture (Ken Sievers)[5]: “I will put this question to Stefan Lindskog: Isn’t it quite possible that, it could just happen that Julian Assange could be put on a plane and sent off to the US just like those two poor Egyptians? It is possible isn’t it? Because these states, whatever lovely laws they have, they cannot always follow their own laws, isn’t correct?”

Lindskog: “Well, it is correct, . . . but that case it did not pass the Supreme Court. It was wrong all the way. I think that this case, if it comes to extradition, it will pass the Supreme Court, and hopefully it will not be such . . .”

The  lecture

Justice Stefan Lindskog’s lecture in Adelaide had little, if anything, to do with the announced title “The Assange Affair: freedom of speech and freedom of information, a global perspective”; he elaborated much on the details of the sexual-offences allegations against Mr. Assange, while playing down the criticism towards the Swedish legal system with have prevailed around the case. Consequently, and regardless the true and serious motivations of Justice Lindskog, his lecture has been instrumented to sustain the official posture of the Foreign Ministry Sweden, wishing to put forward that a) the case has no political implication and that it is based only on an investigation of “sexual offences”; b) onward extradition to US is not a risk and, therefore, Ecuador had no reason to grant Assange political asylum; c) Assange should therefore be sent to Sweden as prisoner.

However, the official theses crashed at multiple occasions during the presentation, and particularly during the discussions ensuing: Why would the government of Sweden persist in bringing Mr. Assange as prisoner to Sweden when simply interrogating him in London could resolve the deadlock? Corollary, why has Foreign Minister Bildt declared that such procedure is not juridical possible ("not permitted")? [6]

The chairman of Sweden’s Supreme Court chapter 2, Stefan Lindskog, stated however in Adelaide:

“I would like to comment upon the possibility of the prosecutor to go to London. It is possible that the prosecutor could travel to London and interrogate him there. I have no answer to the question why that hasn’t happened.”[7]

Justice Lindskog omitted thou key issues on the international criticism of the Swedish legal regarding managment of the Assange case

In his otherwise promotion of the Swedish legal system, Lindskog referred to a few items touched upon in the international criticism, but he failed to address the real issues that have characterized this criticism in the context of the “Assange Affair”. Remarkably, he for instance never developed on the interferences in the legal process by PM Reinfeldt and other prominent politicians, or on the compact Trial by media – both aspects specifically mentioned by Judge Howard Riddle in the London Court verdict of February 2011. Namely, Judge Riddle concluded, “there is a negative publicity” on Assange in Sweden, and he includes statements by PM Fredrik Reidfeldt". [8]
Lindskog dedicated most of his lecturing time to describing detail after detail of how the women met Assange and of the intimate behaviour as reported by the accusers – details already known by the public through the leaked PM of the interrogations published in Internet. He referred to leaks made by the police, and he said that details of the leakages would not be known because “perhaps” no investigation has been done. And he developed long into the subject of restrictions on investigating leaks due to Sweden’s laws protecting sources, the so-called “source privilege”.

However, that is hardly the kind of “leakages” which has severely placed the Swedish legal system in mistrust. Lindskog did not say a word about criticism on the prosecutors involved in the case, one of which (the on-call prosecutor, on the 20 of August 2010) has – against accepted procedures - given to newspaper Expressen information on the identity, name, of Mr. Assange, together with details of the accusations and which resulted in Expressen famous smear-heading “Assange arrested in absentia for rape”[9]. This scandalous violation of the human rights of Mr Assange, who should be considered innocent unless otherwise judged in a court of law and who has not even been charged with any crime, is a breach of Sweden's own legal praxis perpetrated by a Swedish prosecutor managing the case Assange in the Swedish legal system. The prosecutor is known by name and position. Thus, what she did is not a secret but it is illegal and it was not sanctioned.

Those are the type of leaks in the Assange affair that have occasioned severe criticism and damaged the prestige of the Swedish legal system. And those behaviours could hardly be categorized under “source privilege”. In addition, Professor Lindskog even suggested that the world should take seriously as a “forerunner” Sweden’s example on the praxis of protecting “source privilege”.

Swedish legal system, no different?

Lindskog declared, “Now, what about the hard Swedish laws on sex crimes? In Sweden, as in most developed countries, the attitude towards what should be regarded as a sexual crime has changed dramatically over the last years. “ Well, that is hardly controversial. However, the problem that Judge Lindskog failed to address and that has been of great concern, is that the prosecutor responsible of the case, the prosecutor that decided to reopen the case, and lawyers in the law-firm instigating the reopening of the case, all of them have had participation in government-appointed committees in the reviewing and enhancing of the legislation-items about which the Assange case has been declared “a symbol” or “pilot-case”. Such positions have been put forward from clear ideological perspectives in the political struggle to further radicalize the Swedish legislation on sexual offences.[10]

He went on to state that the Swedish legal system is no different than that of most of European countries; although he admitted one or two “differences” such as the absence of the institution of Jury. But to say that the legal system of Sweden is not different is inaccurate. Markedly differences, such as the institution of lay-judges (the political appointed judges)[11], were neglected by Justice Lindskog. He only said about this unique Swedish judicial construction, “And we have Lay judges but they have mild influence on the outcome”.

The above would qualify for Swedish understatement of the year in juridical maters. In fact, since the very beginning of the Sweden Versus Assange affair, and the international criticism that erupted, much has been focused in this issue. The topic “lay-judges” has been a highly debatable issue also in Sweden both within the ranks of professionals in the legal system[12] or in Sweden-based human-rights blogs[13].

With regard to further differences, Judge Lindskog certainly knows that the prosecutors in Sweden have greater power than in peer institutions in Europe. Even the number of prosecutors in Sweden is unusually high. Sweden has more prosecutors per capita than Germany, Finland, Switzerland and Norway, and over the double of prosecutors per capita than for instance France, Italy, or Spain.

The list of peculiarities in the Swedish legal system is definitely longer than the referred above. And this is hardly a discussion of purely academic value. It can have consequences in the managing of criminal investigations. In this context, it should be added that in spite of a good overall appraisal of the Swedish legal system, the WJP Rule of Law Index rated Sweden No. 30 regarding Sub-factor 8 “Criminal Investigation System Effective” in the international index of 2012 – long after Botswana, Romania and Senegal! First positions in that ranking occupied by Denmark (No. 1) and Finland (No. 2). Sweden may still have a good and democratic legal system, but if we are talking about differences between European countries regarding aspects of the legal systems, we could hardly neglect whether there is substantial variances in the effectiveness of criminal investigations.

Extradition issues

Many things what Lindskog said in Adelaide were true or partly true. But some things were not accurate, and definitely, he did not tell the all truth known to him as the highest positioned member of the Justice system. Moreover, the issues he omitted do, in fact, constitute the international criticism towards the Swedish legal system regarding the managing of the case Assange. As a result, instead of an effective “damage control” operation on behalf of the Swedish legal system, the government-sponsored event in Adelaide resulted in the opposite: the distrust may have increased.

Together with emphasizing aspects of the investigation for sexual offences, Lindskog played down the issue of holding or facilitating extradition to the US, and he read from his script what sounded like rather cryptically formulated statements. For instance, he used “shall not be” extradited according to a certain legislation (indicating using of imperative form, of what it is supposed to happen according to that legislation). Thus, he left other options on the table while providing the media the opportunity to promote such equivocal “conclusions” such as the one referred above on that “Assange safe from extradition in Sweden, judge suggests[14], or the dispatch “Swedish judge says Assange has little to fear”.[15]

Other media, like in Italy La Repubblica, had a more cautious approach and, based in the video from the lecture in Adelaide, reported that "the extradition cannot be applicable in the case of Assange".[16]

In fact, Lindskog also referred to other legislation thy may prevail in the case, and to other possibilities. We can trust legislation, he referred elliptically, but can we trust governments? He nonetheless omitted to say clearly during his talk that, ultimately, it is the Swedish government that would decide on a controversial or sensitive extradition matter. As I demonstrated in my previous article in Newsmill, political extraditions in Sweden have little to do with laws or judges. In Sweden, one thing is the written law, but what is fact according to the historical praxis is often altogether different.

Moreover, Justice Stefan Lindskog uttered the important statement (quoted in the beginning of this text) in answering a question during the panel, where he clearly admits that extradition to the US can be possible even outside the interpretation or use of the law. The risk for the extradition of Julian Assange to the US continues unabated.

Finally – and to the best of my recall –Lindskog never talked about Sweden-US temporary surrender agreement, which is a risk to M. Assange that has been widely discussed in international condemnation of Sweden. Other aspects relevant to the above, and not touched upon by Justice Lindskog on the theme of political extraditions, are taken up in the referred the above referred Newsmill article “Mismanagement of the Assange case devastating to Sweden’s international reputation“.


Minister Carl Bildt incorrectly claimed that the Sweden government couldn’t make a guarantee that Assange won't be extradited because the decision rests with the judiciary. This is now proven as flagrantly inaccurate. The final decision for approving an extradition rests with the government. The question that remains is, why the Swedish government persist in prolonging this case, whose deadlock could otherwise easily be ending by either:
  1. Giving guarantee from the part of the government that Mr. Assange will not forward extradited or to US authorities
  3. Performing the interrogation with Mr. Assange in London
In other words, what political forces, which governments, which processes are the main beneficiaries of this clearly artificially prolonging of the case? They have

[3] Catherine Vogan has published part of the material used here on the Australia-based site THING2THING.
[4] “I asked the first question. I started by reminding people of the fate of Ahmed Agiza and Muhammad Alzery in 2001.  I stated that the Swedish state had obviously done something wrong because they later paid compensation to the men. I said my question was not to do with the law per se. I also referred to his remarks to the effect that states are not perfect beings; they are "not always good". So in this case the (Swedish) state had done something it should not have done but it did it anyway.” Source: personal communication from Ken Sievers, 7/4 2013
[5] This was the first question addressed to Justice Lindskog
[6] See lawyer Jennifer Robinson declarations in Expressen - Almedalen, article "Carl Bildts besked till Julian Assange i Visby" by Annie Reuterskjöld 6/7 2012
[8] “But Ridley also says that there is “significant negative publicity” on Assange in Sweden, and he includes statements by PM Fredrik Reidfeldt” (“Men Riddle säger också att det finns ”betydande negativt publicitet” om Assange i Sverige, och att det inkluderar uttalanden från statsminister Fredrik Reinfeldt. “) In: Karin Thurfjell, “Domare: Hurtig försöker vilseleda domstolen”, Svd 24/2 2011
[9] See Expressen's article "Assange being arrested in absentia - for rape" by Diamant Salihu and Niklas Svensson; and Newsmill article "Assange stopped witch-hunt aganst Julian Assange", by Olle Andersson
[12] See for instance the DN-debate article "The lay judges erodes confidence in the courts" (Nämndemännen urholkar förtroendet för domstolar”, DN, 19/3 2011) authored by Professor Claes Sandgren, former Dean at Stockholm University Law School, ambassador and member the International Commission of Jurists in Ginevra
[14] APP, The Age, 4/4 2013
[15] ABC Radio Australia 4/4 2013
[16]la etradizione no se puo aplicare in el caso de Assange”. In Giudice svedese: ''Assange ha agito a beneficio umanità''. La Repubblica, 4/4 2013
Other valuable links  which Cathy Vogan provided me:

I thank @treisiroon for proofreading

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