Dec. 5th, 2011

michiexile: (Default)
Since the Assange case is making the rounds again, once again I cringe at seeing my twitter feed, and many people I have great respect for saying things that betray fundamental misperceptions about what's going on in Sweden about the whole mess...

On suggestion from [ profile] pozorvlak, I'd like to offer an overview of some of the quirks of Swedish judicial process — the things that make Sweden behave in ways that seem erratic. I am not an insider here, and I do not claim that the following is an accurate picture of what has been going on in the prosecutorial office and police offices; but I spent some time reading up on the Swedish judicial process when the mess first started, and have experience with the Swedish climate, and what can be expected from Swedish civil servants.

Fundamentally, every single claim I have seen about an underlying conspiracy refers to behaviours that are at least as likely explained by common types of incompetence. There has been significant pushes — especially early on — from the Defense to frame this as really being a case not of Sweden following its processes, but of puppeteers in the US shaping world events. I do not buy this view; specifically because I see no essentially surprising actions from Swedish authorities.

I do however see how non-Swedes might be surprised by the sequence of events.

The first surprising part is the Swedish definition of våldtäkt (rape). It includes sexual acts when one party is in an insufficiently conscious state to reasonably give consent. Sleep is explicitly given as one such state. While many crimes require the same definition to hold in all involved countries for an EAW and extradition, rape is on a shortlist of crimes where a unilateral definition is enough.

The second surprising part is the lack of influence of the two women on proceedings once they had given their initial statements to a police officer. In Sweden, when a police officer has reason to suspect he has been given a report of a rape, he is bound to file a report — similarly to several other categories of abuse. Once the report is filed, a prosecutor is bound to open an investigation, and initiate a collection of evidence and also to press charges if evidence seems to support it.

The third surprising part is the role of the prosecutor. While in the US (for instance) prosecutors fill the role of an attorney for the state part of the trial, in Sweden they have a different role — they lead the investigative work and coordinate the police in initial discovery and evidence-gathering. They also issue arrest warrants, and deal with the various degrees of freedom infringement for suspects. They do, however, have to defend their various calls to a judge superior prosecutor periodically. (Thank you [ profile] kjn for corrections — there are stages that need to go past a judge, and in the Assange case they have.)

It is important in this to notice that Sweden mainly follows the civil law judicial tradition, not the common law common in the US and the Commonwealth. In addition, Swedish prosecutors differ significantly from US district attorneys — the trial is not adversarial, and the prosecution is under a requirement for objectivity.

A fourth part is the lack of information flow from Swedish prosecutors. In Sweden, pre-trial investigations are supposed to be utterly secret, and leaking information is considered a serious issue, that may well in bad cases invalidate any actual trial at the end. For the Assange case, the mere initial confirmation to the press that the prosecutorial office was in any way interested in Assange was a breach against this confidentiality — and much of the behaviour afterwards can be explained as bureaucrats desperately covering their asses by acting meticulously by the book to make up for the initial gaffe. Connected to this is the inexperience of the late night on-call prosecutors to deal with a media storm, which precipitated the initial quick changes in prosecutor dealing with the case.

It is surprising that Sweden is actually pulling through this much on the case — and I would wish that this much attention was given to all rape cases. However, apart from the surprising amount of due diligence given by the prosecutorial office and the occasional (but far fewer than the Defense alleges) procedural errors made by Swedish law enforcement, from a Swedish perspective, the actions of Sweden in this issue are those of a judicial authority forced by its own rules to follow up on rape allegations regardless of whether the alleged victim still backs the allegation — a rule instituted to deal with “Stockholm syndrome” or abuser-threat induced withdrawals of abuse allegations; and of a judicial authority utterly surprised by the exact magnitude of the mess they suddenly were dealing with.

ETA the distinction of common/civil law, and the non-adversarial role of a Swedish prosecutor.


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