michiexile | Swedish jurisprudence: sources and quotes (Reply)

One of the very most frustrating aspects of the Assange debacle is the regular waves of disinformation aimed at the Swedish state, judicial system and jurisprudence. As one point to refer to, I'll put up links to sources and quotes from same sources here to debunk some of the myths being perpetrated about what is and is not part of Swedish law or legal procedure.

First off, the official English translation of the body of law governing the functioning and procedures of Swedish police, prosecutors and courts:
http://www.regeringen.se/content/1/c4/15/40/472970fc.pdf

Particularly notable are:

23.7
If a person ordered to appear for questioning fails to obey the
summons without a valid excuse, and the person resided or was
staying no more than fifty kilometres, by road, from the place fixed
for the questioning when he received the order to appear, he may be
brought in custody to the questioning.
If the offence under investigation is punishable by imprisonment,
and there is a reasonable likelihood that the person sought to be
questioned would disobey a summons to appear, or that such person
would, if notified of the questioning, impede the investigation by
removal of evidence or otherwise, and that person is staying within
fifty kilometres, by road, of the place where the questioning shall be
held, he may be brought to the questioning without prior summons.
When the person to be questioned is under arrest or in detention, he
shall be brought to the place fixed for the questioning. (SFS
1969:588)

23.18
When the preliminary investigation has advanced so far that a
person is reasonably suspected of committing the offence, he shall,
when he is heard, be notified of the suspicion. To the extent possible
without impediment to the investigation, the suspect and his defence
counsel shall be informed continuously of developments in the
investigation. They shall also have the right to state what inquiries
they consider desirable and otherwise consider to be necessary. A
notice concerning these matters shall be delivered or sent to the
suspect and to his defence counsel upon which they shall be
afforded a reasonable time for counselling. Prosecution may not be
decided before this is done.
At the request of the suspect or his defence counsel a person shall
be questioned, or other inquiry be made, if this may be assumed to
be relevant to the investigation. When such a request is denied, the
reasons for the denial shall be stated.
Before the prosecutor decides on prosecution, he may have a special
conference with the suspect or his defence counsel, if such a
conference may be assumed to be of value when deciding on the
prosecution or for future proceedings in the matter. (SFS 1987:747)

Notice how in 23.18, it stipulates that the decision to prosecute, and THEREBY the issuing of formal charges cannot take place until AFTER an interview in which the suspect is informed of his status as suspect. This particular exchange has not happened yet; which is why the prosecution is stuck where they are in the procedures.

Second, some facts about the structure of the Swedish prosecution authorities and their duties and powers, as described to EuroJustice, a european collaboration organ for prosecutorial and judicial authorities.
http://www.euro-justice.com/member_states/sweden/country_report/

Notable here are, inter alia, the following quotes:

If the victim of the crime is not satisfied with the prosecutor’s decision to waive prosecution, the victim may complain about it. In that case, the decision will be re-examined by a higher prosecutor. Actually, the law does not expressly regulate the complaints procedure against decisions made by prosecutors (as well as police officers), during the preliminary investigation regardless whether the offender or the victim has lodged the complaint. The present legal situation as regards this particular issue has been established in legal practice.

as well as

The suspect may be charged in court with an offence only if there are sufficient reasons for the charge (ch. 23 sect. 2 CJP). This rule is interpreted in such a way that the prosecutor has to have objective and reasonable reasons to believe that the court will convict the accused. Groundless prosecution in court is an offence according to the Swedish CC (ch. 15 sect. 5 CC).

It is worth noticing here that the on-again off-again nature of the prosecutorial status at the very beginning of the affair is EXACTLY what would have happened if the first decision by the (second!) prosecutor to stop investigating was met with a complaint. In this case, a new prosecutor takes up the case, re-examines it, and may decide independently whether the case has the potential of meriting a day in court.

The official translation of the Swedish penal code is available from http://www.sweden.gov.se. In particular, the most relevant parts here are from Chapter 6 of the penal code, which is available here: http://www.sweden.gov.se/content/1/c6/04/74/55/ef2d4c50.pdf

§6.1 (English translation as linked above)

A person who by assault or otherwise by violence or by threat of a criminal act forces another person to have sexual intercourse or to undertake or endure another sexual act that, having regard to the nature of the violation and the circumstances in general, is comparable to sexual intercourse, shall be sentenced for rape to imprisonment for at least two and at most six years.

This shall also apply if a person engages with another person in sexual intercourse or in a sexual act which under the first paragraph is comparable to sexual intercourse by improperly exploiting that the person, due to unconsciousness, sleep, intoxication or other drug influence, illness, physical injury or mental disturbance, or otherwise in view of the circumstances in general, is in a helpless state.

If, in view of the circumstances associated with the crime, a crime provided for in the first or second paragraph is considered less aggravated, a sentence to imprisonment for at most four years shall be imposed for rape.

If a crime provided for in the first or second paragraph is considered gross, a sentence to imprisonment for at least four and at most ten years shall be imposed for gross rape. In assessing whether the crime is gross, special consideration shall be given to whether the violence or threat was of a particularly serious nature or whether more than one person assaulted the victim or in any other way took part in the assault or whether the perpetrator having regard to the method used or otherwise exhibited particular ruthlessness or brutality.

The other allegations that are under investigation are described by the following paragraphs:

§6.10
A person who, otherwise than as previously provided in this Chapter, sexually touches a child under fifteen years of age or induces the child to undertake or participate in an act with sexual implications, shall be sentenced for sexual molestation to a fine or imprisonment for at most two years.

This also applies to a person who exposes himself or herself to another person in a manner that is likely to cause discomfort, or who otherwise by word or deed molests a person in a way that is likely to violate that person’s sexual integrity.

In this block, it is the second half that is considered applicable; §6.10 catches things that did not fall under the more specific preceeding 9 paragraphs; unwelcome groping of breasts and groin falls under this, while less sexualized (patting someone on the ass is given as an explicit example at http://lagen.nu) falls under molestation.

For the unlawful coercion text, we need to read Chapter 4. This is in the partially outdated translation of the entire penal code available here: http://www.sweden.gov.se/content/1/c6/02/77/77/cb79a8a3.pdf

Chapter 4 is "On Crimes against Liberty and Peace" and the definition of unlawful coercion is in §4.4:

§4.4
A person who, by assault or otherwise by force or by threat of a criminal act, compels another to do, submit to or omit to do something, shall be sentenced for unlawful coercion to a fine or imprisonment for at most two years. Anyone who to such effect exercises coercion by threatening to prosecute or report another for a crime or give detrimental information about another, shall also be sentenced for unlawful coercion, provided that the coercion is
wrongful.

If the crime referred to in the first, paragraph is gross, imprisonment for at least six months and at most six years shall be imposed. In assessing whether the crime is gross special consideration shall be given to whether the act included the infliction of pain to force a confession, or other torture.

§4.4a
A person who commits criminal acts as defined in Chapters 3, 4 or 6 against another person having, or have had, a close relationship to the perpetrator shall, if the acts form a part of an element in a repeated violation of that person’s integrity and suited to severely damage that person’s self-confidence, be sentenced for gross violation of integrity to imprisonment for at least six months and at most six years.

If the acts described in the first paragraph were committed by a man against a woman to whom he is, or has been, married or with whom he is, or has been cohabiting under circumstances
comparable to marriage, he shall be sentenced for gross violation of a woman’s integrity to the same punishment. (Law 1998:393)

As for the concrete application of these paragraphs, I recommend reading the first few pages of the first judgement issued in the UK on the matter; where the judges set out the allegations as set out in the EAW. http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/assange-judgment.pdf