michiexile: (Default)
[personal profile] michiexile
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 [livejournal.com 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 [livejournal.com 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.

Date: 2011-12-05 01:54 pm (UTC)
kjn: (Default)
From: [personal profile] kjn
Some more points that might be of interest. Most of this is from an excellent source (you have met the person, michi, though I'm not sure you've talked).

The Swedish prosecutor might push for an extradition, instead of a simple interrogation on British soil, for several reasons.

One is that Assange during the interrogation will be given information that in some way indict him, and where Assange might be able to work out the source of that information. In such a case, the Swedish investigator might have to arrest him during the interrogation in order to stop Assange from influencing the source. (In Swedish legal proceedings, what is said during police interrogations is of strict secondary value compared to what is said in Court.)

Another one is that there are legal and administrative quirks in the intersection between British and Swedish law that makes it hard for Swedish authorities to perform an interrogation of a suspect on British soil. With EU, this has become simpler, but Assange is an Australian citizen, which might complicate things. Assange is also a suspect of a serious crime, which makes this less viable.

One minor clarification: Swedish prosecutors do not have to defend their calls to a judge. Instead, there are higher levels of prosecutor up to the national prosecutor ("riksåklagaren") who check the decisions. In this case, Marianne Ny is the deputy superior prosecutor in the national Swedish center for the investigation of crimes within the family, rape, sexual abuse, and similar. Ie, from a Swedish standpoint, you might go up a level in formality (to the national prosecutor) but it'd be a major step down in actual knowledge on how to investigate a case like this.

However, there are certain decisions that a prosecutor has to present to a court, and there are corresponding decisions in Assange's case in both a lower court and a courts of appeal of Sweden for a pre-trial detention.

Date: 2011-12-05 05:47 pm (UTC)
pastwatcher: (Default)
From: [personal profile] pastwatcher
Yay! Thank you for posting this!!
(hypothetically could I direct people to it? no idea if I'll actually want to)

Date: 2011-12-05 07:32 pm (UTC)
ext_3152: Cartoon face of badgerbag with her tongue sticking out and little lines of excitedness radiating. (Default)
From: [identity profile] badgerbag.livejournal.com
Wow, thank you for this!

Date: 2011-12-05 09:21 pm (UTC)
From: [identity profile] crazyjane13.livejournal.com
Here via [livejournal.com profile] reynardo_red ...

Thank you for posting this. Here in Australia the conspiracy theories are running rampant. I published an article last year on this subject ... wish I'd had this article to link to at the time!

I'll certainly be sharing your post around.


michiexile: (Default)

June 2014

1 234567
2223242526 2728

Most Popular Tags

Style Credit

Expand Cut Tags

No cut tags
Page generated Sep. 21st, 2017 05:34 pm
Powered by Dreamwidth Studios