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Sweden: Swedish Prosecutors Discontinue Assange Investigation

(June 2, 2017) On May 19, 2017, the Swedish Director of Public Prosecution, Marianne Ny, announced that she had discontinued the investigation into the alleged rape committed by Julian Assange against a woman in Sweden. (Press Release, Swedish Prosecution Authority, The Investigation Against Julian Assange Is Discontinued (May 19, 2017); Beslut [Decision], Case AM-131226-10, Swedish Prosecution Authority website (May 19, 2017); Decision 19 May 2017 (unofficial English translation), Swedish Prosecution Authority website.)

The circumstance cited as the reason for the discontinuation of the investigation was that there was “no reason to believe the decision to surrender [Assange] to Sweden can be executed in the foreseeable future.”  (The Investigation Against Julian Assange Is Discontinued, supra.)  Ny specifically noted that further prosecution of the case against Assange requires his physical presence before a Swedish court, something she considered unlikely to take place.  (Id.)  It is almost five years since Julian Assange sought refuge in the Ecuadorian embassy in London in June of 2012, after the British Supreme Court upheld the European Arrest Warrant for his arrest.  (Id.; Decision 19 May 2017, supra; Supreme Court, [2012] UKSC 22, Judgment: Assange (Appellant) v The Swedish Prosecution Authority (Respondent) (May 30, 2012).)

Background

Under Swedish law, investigations must be conducted skyndsamt (as quickly as possible) and any arrest must be proportional.  (23 Ch.  4 § 2 ¶ Rättegångsbalken [RB] [Code of Judicial Procedure] (Svensk författningssamling [SFS] 1942:740), NOTISUM.)  The Swedish Supreme Court had previously upheld the pre-trial detention of Assange, noting the efforts on the prosecution’s part to hear Assange and thereby move the investigation forward, and finding that the possible progression of the case outweighed the inconvenience to Assange. (Nytt Juridiskt Arkiv [Supreme Court Reporter] NJA 2015 s. 261; Elin Hofverberg, Sweden: Supreme Court Affirms Pre-Trial Detention of Julian Assange, GLOBAL LEGAL MONITOR (June 15, 2015).)  A year later, the Appellate Court, hearing a new request from Assange to drop the arrest in absentia, which Assange made after the issuance of a report sponsored by the United Nations that had recommended his release, upheld the pre-trial decision, also noting the efforts by the prosecution to interview Assange at the Ecuadorian embassy.  (Elin Hofverberg, Sweden: Appellate Court Reaffirms Detention in Absentia of Julian Assange, GLOBAL LEGAL MONITOR (Oct. 3, 2016).)

Under Swedish law, a person suspected of a crime must personally appear in court. (21 Ch. 2 § Code of Judicial Procedure.)  Despite the efforts made, Swedish prosecutors have still not been able to hear Assange; however, Ecuadorian prosecutors, who heard Assange in November of 2016, delivered a report prepared in March 2017 to the Swedish authorities.  (Decision 19 May 2017, supra.)  Ny therefore considered it unlikely that the continued arrest in absentia of Assange would remain proportional, as any further progress (by such means as prolonged investigation, DNA testing, or an appearance in a Swedish court) was deemed unlikely.  (Id.)  Thus, the conditions for a proportional arrest, where the drawbacks for the person arrested could be outweighed by the benefits of the arrest in absentia, were no longer present.

Swedish law prescribes that a decision on an arrest, whether carried out in person or in absentia, must weigh the benefit of the arrest (the likeliness of the accused appearing before the court, the severity of the crime, the likelihood that the investigation will move forward, etc.) against the inconvenience of the person under arrest.  (24 Ch. 1§ 2 ¶ RB.)

Although Assange created the Ecuadorian “prison” on his own and is not helping in the investigation, the fact that Swedish prosecutors no longer see any way forward with the investigation means that an arrest in absentia is disproportional, as it only hurts Assange and does not help the prosecution.  (The Investigation Against Julian Assange Is Discontinued, supra.)

Aftermath of the Decision

A discontinuation of the investigation does not mean that the charges against Assange have been dropped. The investigation can be reopened until the statute of limitations for the rape charge runs out in 2020.  (58 Ch. 6a § Code of Judicial Procedure; Press Release, Åklagarmyndigheten, Utredningen mot Assange läggs ned [Investigation of Assange Discontinued] (May 19, 2017), Swedish Prosecution Authority website.)  The statute of limitations has already run out on two other related crimes allegedly committed by Assange in Sweden during the same time period.  (Elin Hovferberg, FALQ: The Swedish Detention Order Regarding Julian Assange, IN CUSTODIA LEGIS (Nov. 7, 2016).)  According to a Swedish press release issued in mid-May, Ny would be prepared to reopen the investigation should Assange visit Sweden.  (Utredningen mot Assange läggs ned, supra.)  By discontinuing the investigation, Sweden also cancelled the European Arrest Warrant for Assange.  (Beslut om att häva ett häktningsbeslut [Decision to Revoke a Detention Order], Case AM-131226-10, Document 445 (May 19, 2017), Swedish Prosecution Authority website.)

Assange’s Swedish counsel, Per Samuelsson, commented on the Swedish prosecutor’s decision by saying, “we won the case,” claiming that it was a result of their presenting evidence that both explains Assange’s actions in 2010 and shows that Assange is being sought by U.S. authorities. (Stefan Wahlberg, Utredningen mot Julian Assange läggs ner – “jag har beslutat häva häktningen” [Investigation of Julian Assange Discontinued – “I Have Decided to Terminate the Arrest [in Absentia]”], DAGENS JURIDIK (May 19, 2017).)

However, Julian Assange remains wanted by British authorities for violating the terms of his bond when he entered the Ecuadorian embassy in London in 2012. (Press Release, Statement of Julian Assange, Metropolitan Police website (May 19, 2017).)