Has Assange been “charged”?

Goran Rudling says he has made another fascinating discovery in the Assange extradition case.

On September 19th, Rudling posted a fascinating article about the word “charges” and how Assange may in fact be charged as would be understood under English law.

On September 29th, he posted a followup stating that the Prosecutor General has confirmed his view as correct by referring to a paper by Prof Wong.

Previously, the view has been (including the view of the English High Court) that Assange is not yet charged as the English process defines it, but has reached an equivalent stage in Sweden.  The confusion, Rudling says, arises from the fact that a Swedish word that translates as “charges” actually roughly relates to what Americans would call arraignment: the act of formally reading out the charges and then the defendant entering a plea.  There is another word for what English people would think of as “charges”, and this stage is already reached.

Rudling tells me that he has confirmed his findings with very reputable sources (but alas, to me that remains a secondary source, so I can only state with certainty that he has told me this – until such time as a Swedish legal expert comments publicly).

If Rudling is correct, and Assange is charged, then many people have been labouring under a huge misunderstanding all this time.  This would include: lawyers in the case, legal experts, legal bloggers,  other bloggers, the media, Assange supporters, and Assange critics – including myself.  The most trusted sources will have got it wrong, and thus everyone else got it wrong.

If Rudling is correct, then this obviously throws up a slew of implications.

  1. It would fully explain why Assange can’t be “questioned” in London – he is wanted to appear in person to enter a plea as part an arraignment.
  2. It would explain Ny’s previous and seemingly contradictory statements about needing an interview before deciding whether to “charge” but also that that a decision had been taken.
  3. It would also explain Ny’s refusal to hold the questioning in London or by phone, which was criticised by Judge Riddle in the London Magistrates Court hearing.
  4. A great deal of red-faced people including celebrities, politicians, and others would have to retract their very public comments saying that the case is “clearly political” on the basis that there are no charges.  They may not have read the court findings before offering their opinions, but they can’t really miss this.
  5. Will the hearings in the UK have to be re-held? Rudling thinks not, as it would not substantially alter the position of the court (which had already concluded that Assange was charged under the English understanding). I am sure that lawyers will be telling us shortly if there could be grounds for re-opening the hearings.  Personally, I would think it reasonable to be able to appeal against a document which has been shown to contain at least one bad error – the rest should be checked as well, to ensure there are no further dramatic revelations of translation that have not yet been uncovered.  While this one may not alter the court decisions (since the court had already assumed that Assange was charged in English terms), what if there are other mis-translations that have not yet been found?

But to my mind, none of those are the key questions here.  The key questions – if Rudling is correct – is why this ever happened, why it took so long to clarify, and why it was a layman who found it, when a high-profile case has been getting so much scrutiny by the media, by highly paid lawyers, and by qualified and expert legal bloggers.

The obvious answer is that maybe none of them are bilingual in Swedish and English and also familiar with both legal systems. And yet the extradition system currently in play assumes that somebody is. I am just not sure who!

The European Arrest Warrant has been much criticised (and I think many criticisms have very good points), but can we blame the warrant itself here?  Somebody issued paperwork in Swedish, and somebody else apparently mistranslated it.  Nobody else bothered to check or to clarify.  Does the system account for this very real and (in hindsight) very obvious possibility? If not – why not?

Precisely whose job is it to translate accurately between language and between legal systems? I don’t know.  Is it Interpol’s job? I don’t think so; they just send information around.  Is it the Swedish Prosecutor’s job? I don’t think so officially, but it arguably should be (at least in part), and there should be somebody in the receiving country who checks the translation as well, as a safety measure.  So where did this apparent mistranslation originate from, and why did nobody clarify it even after it was directly questioned in an English court?

I must state that all the above are rhetorical questions and I am almost totally ignorant, so my lack of knowledge should be unsurprising.  If anyone does know, please do comment!

Anyway: Ny was criticised at the Magistrates court for making seemingly misleading statements about interviewing in London not being legal. If Rudling is correct, then this criticism was unjust – but Ny can then be criticised for not clarifying the situation before the High Court hearing.  She cannot have been unaware of the problem after the first hearing, and surely she must have seen that there was an issue that needed looking at?

I don’t want to get into all the details of what would change in one specific case history if Rudling is correct unless and until we have public confirmation from the Swedish authorities (or legal experts) that Rudling is indeed correct.  There are too many implications and it is just us laymen who have weighed in right now. We do, however, really want urgent clarification from… er.. again, I am not sure who!

But the principle is this: as has often been remarked throughout this case, there are differences between Swedish and English processes.  Surely, then, in order to have due process, the very first (and very basic) step is to make sure that the processes are clearly understood by all parties. And that means checking translations – even those that seem straightforward (for example: as any American who has been invited to “help yourself to a faggot” whilst in the UK can tell you, the word means something quite different in American English than in British English).

So the implications of this are possibly quite big. How many other warrants between two countries with differences of process have already been handled wrongly because of such mistakes? How many more will follow? Have there been any genuinely wrong decisions based entirely on a legal argument apparently obtained from a (non-legal) translation dictionary?

Of all the accusations and mis-representations in this case that have been waded through and debunked, I can finally see a very, very important issue that I totally agree needs to be addressed at the highest levels and with utmost urgency. As I have said before: due process is irrelevant without accurate information to feed into it.

If Rudling is correct, I can’t help but be reminded of the satirical blog post by @LoveAndGarbage on how to comment on foreign legal systems.

 

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