2012-08-20

Assange, uma análise à atitude sueca e britânica


Retirado de: Comments on Why didn't the UK government extradite Julian Assange to the U.S.? Could they legally do so if compelled?

That's a red herring. I'll try to explain why, but it's going to be long. (And if you wonder, I'm a Constitutional Law prof.)
This is what happens when the US wants France to extradite someone who eventually could be sentenced to death:
  1. The French courts states that the extradition is impossible because the death penalty could be sought.
  2. The relevant US DA (or their boss at a high enough level) writes down that they will not seek the death penalty, and the French lawyers representing the US in front of the French extradition court produce this paper and enter it in the court's records.
  3. The French extradition court then validates the extradition.
  4. The US DAs keep their promise, because if they don't, the French courts won't ever again extradite anyone towards the US.
What Assange wants is not a decision from Sweden's government, but a promise from Sweden's prosecutors. I'm perfectly familiar with ministertyre (as a cynic, I consider it to be just one of the many ways the Swedes use to feel superior to the others; whenever it matters, ministerstyre is conveniently forgotten, see e.g. the Pirate Bay case...) but it doesn't apply here.
Another interesting tidbit is that Assange is only sought by Sweden for questioning and has not been formally charged. While the British High Court has decided that the current advancement of the Swedish procedure is equivalent to being charged in the UK, I consider this ruling to be an aberration; the common-law steeped High Court failed to understand a finer point of the civil-law influenced Swedish penal procedure.
Being wanted for questioning is the Swedish equivalent of the French penal status of protected witness. This means that someone is sufficiently suspect of a crime that they whould be afforded extra care so that the case against them does not become contaminated by self-incrimination issues, but not sufficiently thought guilty that they would be charged at the moment. The distinction between both cases is simple: charging someone can only be done by a judge; giving someone protected witness status is a decision commonly taken by the senior detective in charge of the case.
The official next step in the Swedish penal procedure would be to question Assange, and, depending on his answers and other elements, then either formally charge him or officially decide not to charge him.
Assange and his lawyers have offered to the Swedish prosecutors to produce Assange for questioning either in person in the UK or through Skype-like videoconference in the Swedish prosecutor's office. The Swedish prosecutors refused. It has happened that judges and prosecutors would move abroad to be able to question someone, but it is uncommon and inconvenient, so there is not much meaning attached to the Swedish prosecutor refusal to go to the UK.
But the refusal to question Assange through videoconference is much more difficult to accept. Not only does it seem to be petty and obstructive, it is also a clear violation of Article 6 Paragraph 1 of the ECHR.
The French penal procedure used to demand similarly that a suspect should surrender and go to prison on the eve of his criminal trial. The European Court consistently found this a violation of 6§1 in a string of cases (Omar, Guerin, Khalfoui, Goth, Papon, Coste, Morel, Walser, etc.) that eventually managed to have the French law amended.
There is not much wiggle room here: Assange has a fundamental right to be questioned by the prosecutors withouthaving to surrender to Swedish police. This is cristal clear jurisprudence from the ECHR, and the Swedish prosecutors know it.
Let me recap (aka TLDR):
  • Assange is not charged (yet) and the High Court is wrong on that point
  • Assange has a fundamental right clearly recognized by the ECHR not to surrender to Swedish police before appearing in front of the Swedish prosecutor
  • The Swedish Prosecution Service has consistently refused to promise that Assange wouldn't be extradited to the US once in Swedish custody; this type of promise is common in extradition cases and within the power of the Swedish prosecution service
  • The Swedish Prosecution Service has refused the opportunity to question Assange through videoconference, while insisting on Assange's surrender to Swedish custody; this is a clear and known violation of the ECHR that the Swedish prosecutors can't ignore.
There's only one possible conclusion: the Swedish prosecutors are acting in bad faith here. Their penal-fu is bad and they should feel bad.

1 comment:

Peres said...

Lol. Tu sabes, eu sei, todos sabem, que este caso de assédio na Suécia é apenas um meio para o calar a ele e à wikileaks. Tudo o resto é papel e burocracia.