The following is a guest post by Elin Hofverberg. Elin is a foreign law research consultant who covers Scandinavian countries at the Law Library of Congress. Elin has previously written for In Custodia Legis on diverse topics including Iceland – Global Legal Collection Highlights, Alfred Nobel’s Will: A Legal Document that Might Have Changed the World and a Man’s Legacy, What’s in an Icelandic (Legal) Name?, Glad Syttonde Mai! Celebration of the Bicentenary of the Norwegian Constitution, Happy National Sami Day!, Researching Norwegian Law Online and in the Library, and a boarding school scandal in Sweden.
The case of Julian Assange and his relationship with the Ecuadorian embassy has recently been in the news again, particularly in relation to Ecuador admitting to having “temporarily restricted” his Internet access.
So why is Julian Assange at the Ecuadorian embassy in London in the first place?
In this post I explain some relevant legal aspects of the Assange case.
1. What is the relevant timeline?
In 2006, Julian Assange launched Wikileaks. In late November 2010, Wikileaks began releasing confidential diplomatic cables.
While visiting in Sweden in the summer of 2010, Assange was accused of having sexually assaulted two women and raping one of them. Assange strongly denies the allegations and his lawyers presented in court text messages that in their view prove that the alleged encounters with the complainants were consensual.
By the time the prosecutor presented the case before a Swedish court, however, Julian Assange had already left Sweden. The prosecutor requested that a detention order be issued in absentia under chapter 24 section 1 (24:1) of the Rättegångsbalken [RB] (Criminal Procedure Code) on the grounds that she wanted to interrogate Assange, and that without the detention order there was a risk that he would evade justice. No formal charges have been filed.
As Julian Assange was present in the United Kingdom at the time the detention order was granted, Sweden issued a European Arrest Warrant for his arrest. Assange was arrested by UK police in December 2010 and the UK courts considered whether Assange should be surrendered in accordance with the European warrant. Assange was free on bail during this process. Ultimately, in May 2012, the UK Supreme Court found that the arrest warrant required the UK to hand over Assange to Swedish authorities.
After the UK Supreme Court refused to reopen the appeal on June 14, 2012, Assange skipped bail and, instead of surrendering to the authorities, sought refuge at the Ecuadorian Embassy in London. He has been receiving shelter there ever since.
2. Why was the Swedish detention order issued?
A Swedish detention order may be issued if there are reasons to detain a person while waiting for the final decision on detention by the court (24:6 RB).
The Swedish order for Assange’s arrest and detention was issued as a result of Assange being suspected of having committed crimes of sexual nature while in Sweden in the summer of 2010. Specifically, the crimes were sexual assault (6:2 Brottsbalken [BRB] (Criminal Code) , and rape (of the lesser degree) (6:1 BRB). The statute of limitations (five years) has now run out for the lesser assault crimes (35:1 BRB, supra) but Assange is still accused of having raped one woman in Stockholm in 2010. The statute of limitations for rape is 10 years in Sweden (35:1 BRB).
Assange has objected to the detention order issued in absentia by the Swedish courts. In May 2015, the Swedish Supreme Court upheld the detention order, taking the Swedish prosecutor’s willingness to hear Assange in London into consideration. The Swedish Court of Appeal reaffirmed the detention order in September 2016. I wrote articles for the Global Legal Monitor on both the Supreme Court and Court of Appeal decisions.
3. What are the penalties if convicted?
If convicted of rape, Assange would face up to four years in prison (6:1 BRB). Sweden allows for prison sentences to be served in a person’s home country, depending on applicable rules and regulations for that country. To qualify as a home country for the purpose of serving a sentence, the person has to be either a citizen or a permanent resident of that country.
4. What is a European Arrest Warrant?
Sweden, a member of the European Union, may request a European Arrest Warrant against a person who is either accused of a crime for which the punishment is at least one year imprisonment or has been sentenced to imprisonment for at least four months. The introduction of this type of warrant “replaced lengthy extradition procedures within the EU’s territorial jurisdiction.”
5. What is the current situation?
In December 2015, following the Swedish Supreme Court decision in May 2015 and before the rendering of the Appellate Court decision in September 2016, Sweden and Ecuador signed an agreement that would allow the questioning of Assange by Swedish authorities at Ecuador’s embassy in London.
According to the Swedish Court of Appeal, there are ongoing negotiations between the Ecuadorian embassy and the Swedish prosecution office regarding the possibility of conducting an interview of Assange at the Ecuadorian embassy later this year.
6. Can Assange be extradited to the United States?
Throughout the process Assange has claimed that he risks extradition to the United States for crimes of espionage if he is released to Sweden. However, this claim was rebuffed most recently on September 16, 2016, by the Swedish Court of Appeal, which rejected the findings of a UN report that had found that the deprivation of Assange’s freedom was arbitrary. The UN report further determined that Assange faces a real risk of extradition to the United States, a finding which the Swedish court dismissed.
Sweden does allow for extradition to the United States under certain circumstances. Extradition between Sweden and the United States is governed by an extradition treaty, which was first signed in 1961 and amended in 1983. According to the treaty, the extradition of a person to the United States requires that she/he not face the death penalty (art. 8) and that the crime for which the person is charged or suspected of in the United States is also criminalized in Sweden and subject to the specified minimum term of imprisonment (art. 3).
Whether Assange would qualify for extradition would therefore depend on the offenses he is charged with, as well as on the sentences he could potentially face if convicted in the United States.
The Swedish Supreme Court has allowed extradition to the United States of a Chilean citizen charged with drug crimes in the United States, as well as of a Taiwanese citizen for a politically-motivated attempted murder, since the crime in itself was not a political crime but a violent crime with political motivations (NJA 1972 s 358).
In 1992, however, Sweden refused to extradite CIA spy Edward Lee Howard to the United States because it considered the crimes he was wanted for were of a political nature, and thus excluded by the treaty (art. 5(5)).
Before extraditing Assange to a third party, such as the United States, the rules of the European Arrest Warrant require that Sweden first seek the consent of the competent authority in the UK, the country would have executed the original warrant.
In reality, the housing of Assange at the Ecuadorian embassy is bound to end sooner or later; if Assange is not transferred to Sweden by 2020 the statute of limitations would expire and Assange would no longer be subject to the detention order. However, if the United States decided to seek his extradition from the UK, a whole new process would begin.
Update: Today, the Swedish Prosecution Authority announced that interviews with Julian Assange are now scheduled for Nov. 14, 2016 to take place at the Ecuadorian Embassy in London. The questioning will be conducted by an Ecuadorian prosecutor, but Ingrid Isgren, Chief Prosecutor at Swedish Prosecution Authority and assistant prosecutor of the case, as well as Swedish police are allowed to attend the interview. A DNA-sample may also be collected during the interview but is subject to Assange’s consent.