This post on hackernews is doing the rounds. Let’s look at the claims. We’re going to keep this short, as some of the claims are already common misconceptions and have been debunked by numerous sources.
Julian Assange is not charged with anything in Sweden or any other country
He was given permission to leave the country on 15th September 2010
The Law Firm hired in the investigation…
The case against Julian was initially dropped.. it was revived by a different prosecutor
In all instances, the 2 plaintiffs consented to sexual intercourse
A condom submitted as evidence.. contains no DNA from either the complainant or Julian.
Text messages exchanged.. cast doubt on the allegations
Ny refused to give evidence in writing.. this violates various laws
EAW and Red Notice were issued just before Wikileaks began to publish Cablegate.
Assange would be detained for an indefinite period, and trial is heard in private.
The allegations would not constitute an offence in the UK or Australia
Other claims and conclusions
“Julian Assange is not charged with anything in Sweden or any other country.”
In our judgment Mr Assange is on the facts before this court “accused” of the four offences…Although it is clear a decision has not been taken to charge him, that is because, under Swedish procedure, that decision is taken at a late stage with the trial following quickly thereafter. In England and Wales, a decision to charge is taken at a very early stage; there can be no doubt that if what Mr Assange had done had been done in England and Wales, he would have been charged and thus criminal proceedings would have been commenced. If the commencement of criminal proceedings were to be viewed in this way, it would be to look at Swedish procedure through the narrowest of eyes. On this basis, criminal proceedings have commenced against Mr Assange.
“Julian Assange did not flee Sweden to avoid questioning. He was given permission to leave the country on 15th September 2010, after remaining 5 weeks in Sweden for the purposes of answering allegations made against him.”
“Given permission” is another Common misconception. The prosecutor actually said there were “no force measures” to prevent his leaving. He was not yet under arrest. The warrant for his arrest was issued on 27th September at 14:15 – just a few hours after his lawyer, Björn Hurtig, had called and said that he was unable to get into contact with Julian Assange. This was almost a week after an interview for the 28th had been arranged via his lawyer. So Assange left Sweden the day before the interview was due, and failed to return for a planned talk in early October. This is another Common Misconception. More on the 4 corners analysis page.
“The Law Firm hired in the investigation…”
We’re speaking about this one out of sequence, as it is vital to understand the difference between a lawyer (which is a word widely used) and a målsägarbiträde – which is what Borgsotrm’s actual role is. We covered this already here.
Claes Borgstorm is actually a court-appointed advisor to the two plaintiffs (and he is paid by the state). In Sweden this is called a målsägarbiträde. A målsägarbiträde doesn’t have to be a lawyer. They do not investigate, or prosecute. They act as a representative of the plaintiff and look after their interests. Borgstorm’s website even uses this very word.
More details on Goran Rudling’s blog (which also has sources linked).
“The case against Julian was initially dropped.. it was revived by a different prosecutor”
This is true. The Swedish process is called “överprövning av åklagarbeslut” whereby a decision may be appealed. In 2010, 12% of all appeals were successful. See 4 Corners analysis for more details and sources. It is a perfectly normal process in Sweden.
The appeal was made by Claes Borgsotrm, the målsägarbiträde for the two women. He acts on their wishes – so if the woman did not want the case perused, Borgstorm could not have appealed the original decision. He has to act in their interests and at their direction.
The expert testimony of Svek-Erick Alhem (who appeared for Assange) comments on this in some detail in paragraph 20. While much of his statement was based on the false information provided to him by Assange’s lawyers, this is a standard Swedish process. Alhem says:
I can confirm that this is permitted under Swedish law… no matter how many times the case was dropped and resurrected.. Nor would it matter that [the prosecutor] is the person who both makes the decision… and then handles the investigation herself.
The other expert witness, Brita Sundberg-Weitman agreed with Alhem on this point in her expert testimony.
Concerns had been raised by Mr Assange’s lawyers in London.. However, I confirm that this is permitted as a matter of Swedish law…
Ms Sundberd-Weitman is clearly opposed to both this process and disapproving of the feminist activities of Borgstorm – but this is not relevant to the law, so we have not quoted it. It does make interesting reading, though, and we highly recommend going through the whole thing. Ms Sundberg-Weitman’s repeated references to “ultra radical feminists” are not the usual boring fare of expert witness submission, though they do perhaps give an insight into her worldview. But the details of her statement (like Alhem’s) was prepared on the false information supplied by Assange’s lawyers.
“In all instances, the 2 plaintiffs consented to sexual intercourse”
There is one allegation of rape – the basis of which (by definition) is that the plaintiff did not consent. The allegation is that while she was asleep (and thus unable to consent to any sort of sex) she was penetrated without a condom. She had previously made it clear that her consent was conditional on a condom being used. The complaint has now been reviewed by two Swedish courts and Two English courts. They all upheld that the allegation was one of non-consensual sex: rape. From the English
it is difficult to see how a person could reasonably have believed in consent if the complaint alleges a state of sleep or half sleep, and secondly it avers that consent would not have been given without a condom. There is nothing in the statement from which it could be inferred that he reasonably expected that she would have consented to sex without a condom.
“A condom submitted as evidence.. contains no DNA from either the complainant or Julian.”
We consider that this evidence is for the prosecutor to weigh and maybe a court to rule on – though it is worth noting that this evidence is unrelated to the rape charge (which does not involve a condom at all).
If true, the related charge could well be dropped after the second interview, which Assange is avoiding.
However: a rape kit has been used. The results are presumably part of the evidence held by the prosecutor. Christine Assange does not mention this.
“Text messages exchanged.. cast doubt on the allegations”
We only have Hurtig’s testimony as to what the text messages may contain, and he is unlikely to have revealed details of any that were not helpful to his client. Again, this is a matter for the Swedish authorities.
Goran Rudling did indeed discover these. His views on the conduct of the lawyers in this case is well known. The defence lawyers, that is. You can read his thoughts on his blog. Some of his other posts are highly critical of one of the women and the evidence in the case.
“Ny refused to give evidence in writing.. this violates various laws”
Except it doesn’t. The suspect gets the information after charging and a trial has been confirmed. It works the same in the UK (section 6.11).
“EAW and Red Notice were issued just before Wikileaks began to publish Cablegate.”
Indeed. Assange’s arrest was first ordered on September 27th. Assange’s lawyer was told on October 12th that a warrant would be issued if his client did not appear for interview. A domestic warrant was issued by a Swedish district court on 18th November. Assange appealed it, and the Appeal Court in Svea upheld it. He applied to be heard by the Swedish Supreme Court. They declined to review the case, saying it was not unusual. The EAW and Red Notice were then issued on 2nd December (see section 1).
The refusal to be interviewed and the appeals by Assange did indeed mean that the Red Notice and EAW were delayed until just before Cablegate. But the exact timing was entirely due to the actions of Assange himself. Wikileaks have pointed out this timing more than once – but never mention this fact.
“Assange would be detained for an indefinite period, and trial is heard in private.”
A suspect in a major case is held for a period of three and a half days. After that time, this must be reviewed. Bail is unusual for serious offences: this is an actually valid criticism of the Swedish process, but Assange is being treated no differently to any other suspect. Sexual trials are heard in private unless the parties ask the court to hold it in public and the court agrees. Any trial must happen quickly – usually within two weeks of charges being brought, though extensions can be requested to prepare for the case.
At the magistrates court, the opinion expert witness Sven-Erik Alhem (appearing for Assange) was summarised by the judge:
[Alhem said] …rape trials in Sweden are normally heard privately. He believes it is necessary to balance the integrity of the injured party against the principle of openness. Both parties might think it is a good thing that the whole trial is heard behind closed doors.
The prosecutor, Marianne Ny, had previously offered the chance for Assange to attend an interview “discretely” (agreed facts, item 20)
At around the same time [early October 2010], the prosecutor stated that, notwithstanding the extant arrest warrant, that the Appellant was ‘not a wanted man’ and would be able to attend an interview ‘discreetly’
“The allegations would not constitute an offence in the UK or Australia”
Another common misconception. Under English law, the allegations are offences and satisfy the extradition requirement of “dual criminality”.
The Court considered the issue of dual criminality in relation to Offences 1 – 3 and ruled that dual criminality was satisfied in each.
The Court ruled that Mr Assange’s objections raised in relation to Offence 4 fail.
Other claims and conclusions
The items about political links and Swedish process are possibly true. But they are really only of note if one is trying to imply a conspiracy. As can be seen from the above, there is a definite attempt to imply a conspiracy. The only problem is that every single claim that was checked has been falsified.
Many of the claims are simply defence arguments (some already discredited in open court) that are being repeated.
Some observers feel that Assange actually got special treatment: he was not arrested when the investigation was re-opened, and his passport was not held – though this would have been perfectly normal. He did fully co-operate in the early stages, which may be why these measures were not taken.
Some of these claims have been checked by experts (real lawyers), and always found to be lacking. Why are they still being promoted as true so widely, after having been repeatedly found to be without merit? And why are news sources still publishing without checking basic facts against the freely available records?