To

Svea Court of Appeal

Section 1
RESPONSE
Case 8290-14: Julian Assange ./. Sde!" P!se#u"i!n Au"$!i"% in
S"!#&$!l'
By reason of the Court of Appeal's order in filing 11 to submit a response to filing
10, we wish to submit the following
1 !"T#$%&CT!$"
'e note that the prosecutors verify that an obstacle to e(ecution e(ists
'e also note that the prosecutors admit that no measures at all have been ta)en
to arrange for a *uestioning of +ulian Assange in ,ondon, despite the fact that the
preliminary investigation has been in place since August -010 and that the
obstacles to e(ecution have been in place since +une -01-, and by all indications
will continue indefinitely
'e further note that the prosecutors do not offer any other solution to the
deadloc) than the continued detention in absentia in order to pressure +ulian
Assange into renouncing his political asylum
'e also note that the prosecutors almost entirely fail to meet our legal reasoning
.partly in relation to the prosecutors' general duty to progress a preliminary
investigation and partly about the conse*uences of the fact that the order to
detain in absentia cannot be e(ecuted/ with the e(tensive referencing of doctrine
and pra(is which we have provided both to the %istrict Court and in our appeal
#egarding the *uestion about how the S0S that Assange refers to shall be
presented in the Court of Appeal, Assange 'a&es a '!"i!n .see section 1 below/
to that the court for the prosecutor to hand over a copy of the S0S traffic
Alternatively, Assange ma)es a '!"i!n that an application be made to the
2uropean Court of +ustice for a preliminary ruling
1
'e therefore mainly wish to refer to our earlier submissions, to which we wish to
add the following positions and additions
- ASSAN(E)S AC*+A, ,-.-N( CON/-*-ONS CONS*-*+*E A
/EPR-.A*-ON O0 ,-1ER*2
To avoid possible misunderstandings, it should be e(plained .as is also done in the
appeal/ that Assange first and foremost argues that the circumstances of his stay
at the 2cuador embassy constitute a deprivation of liberty This matter is
elaborated in this section
!n the case that the circumstances are not considered to constitute a deprivation
of liberty, the circumstances should alternatively be ta)en into account in 3udging
proportionality at the e(ecution stage This latter matter is ta)en up in section 4
As support for the claim that the circumstances under which Assange is living
since 15 +une -01- constitute a deprivation of liberty, Assange has in his appeal
cited several cases from the 2uropean Court
The prosecutors counter in appendi( 10 that the legal cases lac) relevance
because they describe 'different types of deprivations of liberty imposed by a
state on an individual' and because Assange 'chose to visit the 2cuador embassy
and remain there 6e can himself decide if and when he wants to leave the
embassy'
This reasoning of the prosecutors is incorrect The pra(is of the 2uropean Court is
relevant to this case and their significance is as follows
According to the 2uropean Court of 6uman #ights, a deprivation of liberty e(ists
when a person is forced to choose between incarceration or giving up a
fundamental human right such as a grant of asylum This is clear from a number
of cases in the 2uropean Court
!n the case of Amuur v 7rance, a number of people had fled to an international
airport in 8aris in order to see) asylum 6owever, 7rance refused to let them cross
the border into 7rance for several reasons They remained in the transit 9one of
the airport for appro(imately -0 days !n the court case, 7rance insisted inter alia
.see the 3udgment paragraph 1:/ that the applicants had not been deprived of
liberty as they could at any time have ended their presence in the transit 9one by
boarding a departing airplane The 2uropean Court re3ected this argument .see
3udgment paragraph 1;/ and stated that the possibility of leaving the airport
willingly did not e(clude the e(istence of a deprivation of liberty, after which it
was established in paragraph 15 that the applicants had indeed been deprived of
2
liberty
!n the case of Abdi v United Kingdom, the matter before the court concerned the
applicant's refusal to voluntarily cooperate in the e(ecution of an e(tradition The
court found that the applicant's refusal to cooperate did not disadvantage the
applicant's claim
There are further cases which illustrate this principle, such as Mikolenko v Estonia,
Riad & Idiab v Belgium, and Storck v Germany.
The 2uropean Court of 6uman #ights has established that a deprivation of liberty
does not necessarily re*uire traditional detention, but rather should be assessed
on the degree of intrusion on the individual's freedom of movement This
assessment is not affected by the individual's possibility to leave the place, if
leaving would mean renouncling a fundamental right or e(posing themselves to
an unacceptable ris)
7or +ulian Assange, it would mean that in order to utilise his right to political
asylum, he must remain inside the embassy premises !f he were to leave the
embassy premises, he will be deprived of his liberty and ris)s e(tradition for
political crimes to the &nited States, given that there is no guarantee that Sweden
and the &nited <ingdom would respect 2cuador's decision of granting +ulian
Assange political asylum if there were an e(tradition re*uest from a third country
This coercion shall be seen as a deprivation of liberty in accordance with article =
in the 2uropean Convention on 6uman #ights Compared with above mentioned
cases .Amuur v rance and others/ the circumstances under which Assange is
forced to live are much more severe
The circumstances that constitute a deprivation of liberty are, in summary as
follows>
Assange has been forced to remain in the embassy for over two years
The situation will by all indications continue for the foreseeable
future?indefinitely .'indefinitely' in the 2C6#'s 3urisprudence/
The situation is coupled with arbitrariness and 3udicial uncertainty, which
derive from the fact that the Swedish preliminary investigation is not being
pursued .contrary to the 2uropean Court of 6uman #ights 3urisprudence/
Assange has not been outdoors since 15 +une -01- .The right of a person
who is deprived of liberty to be outdoors at least an hour a day is a
fundamental rule that follows both Swedish law .Chapter -, of the
%etention Act/ as well as 2uropean@wide rules .See the Council of 2urope's
minimum standards for prisoners Article -A1/
3
Assange's living *uarters are appro(imately 40 s*uare metres
The living *uarters are surrounded around the cloc) by British police
The 2cuador embassy discovered surveillance e*uipment on the premises
Assange has no access to ade*uate healthcare Should he be forced to see)
hospital care, he will lose his political asylum and will be arrested
Assange has no normal contact with his children or his family
Assange cannot carry out his professional duties in a normal fashion
The decision of arrest in absentia is the basis of the 2uropean Arrest 'arrant,
which in turn is the reason the embassy of 2cuador is surrounded around the
cloc) by the &nited <ingdom, which thereby ma)es it impossible for Assange to
e(ercise his political asylum other than inside the embassy #esidence in the
embassy is, in other words, a result of the deprivation of liberty imposed on
Assange by the state of Sweden
The fact that Assange is forced to choose between being loc)ed in the embassy
and renouncing his political asylum should be considered a compulsion and should
not disadvantage +ulian Assange
Assange's presence at the embassy is an arbitrary and indefinite deprivation of
liberty
Biven that it is not possible to, with legally binding effect, consent to a measure
that amounts to a deprivation of liberty, Assange's sub3ective position, on its own,
lac)s significance on the matter of whether the situation amounts to a deprivation
of liberty
The situation is therefore a deprivation of liberty per chap - C ; of the Constitution
and article = of the 2uropean Convention on 6uman #ights, and for this reason
should be brought into the assessment of proportionality in the arrest decision
Assange's remaining in the embassy amounts to a deprivation of liberty and the
significance of this is that he has de facto already served the period of time of a
sentence which is nearing the theoretical ma(imum sentence for the suspected
crime, and therefore the time that follows would e(ceed the penalty, if he were
convicted !t is also relevant that three of the four outstanding suspicions will
reach the statute of limitations in August -01=
4
The treatment of Assange is also in violation of the 2uropean Convention of
6uman #ights in accordance with other decisions by the 2uropean Court on
6uman #ights
Article 4 stipulates that no person can be e(posed to torture or inhuman and
degrading treatment or punishment The conditions that Assange is forced to live
under at the embassy violate this article
The prosecutors' passiveness means that the infringement of Assange's rights
according to Article :, which include inter alia the right to a fair trial within
reasonable time, is established .see for e(ample !em"o## v Germany, Kart v
$urkey, 2ckle v Germany% K&nig v Germany, 'eumeister v Austria, $ingerisen v
Austria, ()lissier and Sassi v rance and (edersen and Baadsgaard v *enmark/
Assange's presence at the embassy curtail his ability to live a normal family life,
which violates article ;
7inally, the prosecutors' actions also violate Article 1; because the effect of
continued arrest in absentia is to force Assange to choose between a deprivation
of liberty and giving up a fundamental human right
4 CONSE3+ENCES O0 *4E ,E(A, O1S*AC,E *O E5EC+*-ON
&nder any circumstances, the actual situation in which Assange is living should be
ta)en into account at the ongoing e(ecution stage
As we have previously argued, the principles of legitimate purpose, necessity, and
proportionality also apply during the +"ase o# t"e ongoing e,ecution, a fact that
the prosecutors choose to disregard in filing 10
The prosecutors allege in relation to the legitimate +ur+ose +rinci+le that the
purpose of the original decision on detention in absentia falls within the
permissible reasons provided by law, which is not what we argued 'hat we argue
is that the conse-uences in t"e +"ase o# ongoing e,ecution in practice results in
putting pressure on Assange to renounce his political asylum, which does not fall
within the principle of legitimate purpose
The prosecutors similarly avoid the +rinci+le o# necessity The prosecutors simply
attach themselves to what they considered was necessary in the autumn of -010
.even though the circumstances have changed radically since then/ and
completely fail to comment on the fact that it follows from the principle of
necessity that the applicable phase of ongoing e(ecution .in accordance with the
previously referred to positions in the legal doctrine/ re*uires that detention in
absentia must be nullified if it cannot be carried out
5
7inally, in relation to the +rinci+le o# +ro+ortionality, the prosecutors and the
%istrict Court made the same mista)e> They entirely fail to ma)e an assessment
on proportionality at the ongoing e,ecution stage
6erein lies the decisive error of the %istrict Court They have first considered the
matter about whether Assange's presence at the embassy constitutes a
deprivation of liberty They have .incorrectly, see section - above/ come to the
conclusion that there is no deprivation of liberty, a conclusion that has led the
%istrict Court to totally ignore @ in a gravely and erroneous manner @ the appalling
conse*uences that the arrest decision in fact has for Assange in the current
stalemate The error lies in that the %istrict Court has not realised that the
proportionality assessment at the ongoing e(ecution stage must be done, even if
they have reached the conclusion that the criteria for a deprivation of liberty are
not fulfilled
The actual circumstances of Assange's current life must obviously be considered
when 3udging proportionality at the e(ecution stage !t follows both from domestic
law, "+A -011 s =1; p -5, as well as the 3urisprudence of the 2ct6# .as per the
above@mentioned cases/ that +ulian Assange cannot be disadvantaged by the fact
that he has been forced to e(ercise his political asylum inside the embassy of
2cuador
Assange is caught in a hopeless dilemma 6e is forced to choose between
remaining at an embassy on arbitrary grounds until further notice, or leaving the
embassy and thereby losing his political asylum, with the ris) he be surrendered
to the &nited States to face prosecution
Assange lives his entire life in an area of only 40 s*uare metres 6e has not been
outdoors a single minute since 15 +une -01- 6e has no access to healthcare 6e
has been denied all normal contact with his family and his children 6e cannot
carry out his professional duties 6e is forced to live his life physically surrounded
by police around the cloc) 6e is most li)ely under auditory surveillance The
prosecutors have, for over four years, refused to ta)e a single step in the
preliminary investigation And yet they demand continued arrest in absentia for
the apparent purpose of e(ploiting Assange's precarious living situation to
pressure him into leaving the embassy, which would happen at the e(pense of his
political asylum which he would thereby lose, which in turn would e(pose him to
the ris) of ending up in a &S prison cell for perhaps 4= years or more
!t is therefore absolutely clear that it is the duty of the Court of Appeal to rescind
the warrant for arrest in absentia !t needs to be repeated that this would force
the prosecutors to resume their wor) on the preliminary investigation They will
no longer be able to hide behind the arrest warrant decision, and they will no
longer be permitted to pressure Assange into abandoning his political asylum The
preliminary investigation can then move forward under normal conditions, that is
6
to say Assange will not have to abandon his political asylum
4. 6O*-ON *4A* A COP2 O0 *4E S6S RECOR/S 1E 4AN/E/ *O *4E
CO+R* OR A,*ERNA*-.E,2 *4A* AN APP,-CA*-ON 1E 6A/E 0OR A
PRE,-6-NAR2 R+,-N( *O *4E ECJ
+ulian Assange re*uested at the %istrict Court remand hearing to be granted
access to, inter alia, all S0S that have been e(tracted from the complainants'
phones The prosecutor responded to the re*uest by ma)ing copies of the S0S
temporarily available to the defence only during part of the hearing, after which
the prosecutors too) them bac) "o copy was provided to the court, which has not
had access to the S0S at all
+ulian Assange's re*uest is based on Chapter -1 C 5a of the 8rocedural Code which
states that the suspect has the right to )now the circumstances on which the
remand decision or arrest decision are based !n the preliminary wor)s for the
decision, it is clear that the goal of the decision is for the suspect to have a right
to access material that is necessary to effectively challenge the decision .prop
-014?11>1=A s -;/
The ordinance is an implementation of Art A of the 2uropean 8arliament and
Council %irective -01-?14?2& of -- 0ay -01- The articles are based on articles :,
1A and 1; of the 2uropean Charter of 7undamental #ights .henceforth the Charter
/ and articles = and : of the 2uropean Convention on 6uman #ights .henceforth
the 2uropean Convention/ and have been decided on the basis of article ;-- of
the Treaty of the 7unctioning of the 2uropean &nion .see points ; and 11 of the
%irective's preamble/ The purpose is to create common minimum rules in order to
guarantee certain basic rights of suspects and to reinforce mutual trust in the
criminal 3ustice system of member states which is the basis of the principle of
mutual recognition of decisions
The matter of how the material shall be made available to the suspect is not
e(pressly set out in the law, but the government white paper stipulates that there
is no right to obtain a copy of the materialD it should be handled in such a manner
that is considered appropriate, and this will be assessed on a case@by@case basis
.prop -014?11>1=A s -;/
!n certain cases it may obviously be sufficient to ma)e the material available
without providing a copy, so that the suspect may be given the possibility of
assessing the significance of the material 6owever, it cannot be understood to be
sufficient to only let the defence access the material in that way in cases where
the material is e(tensive re*uires to be bro)en down and analysed before it can
be assessed "either is it sufficient for the prosecutors to allow the defence, but
not the court, access the material in a case where the suspect wishes to ma)e
references to the material in order to challenge the decision on deprivation of
7
liberty
!n the present case, the material involves a large amount of S0S which contain a
significant amount of information of direct or indirect significance for the
assessment of the events that led to the decision to arrest The S0S contain
comments about the events occurring between +ulian Assange and the
complainants as well as statements about the purpose of the actions that
followed To get a clear understanding of the significance of the S0S records and
their bearing on the matter of whether there is probable cause for the suspicions,
it is necessary for the S0S to be analysed and put in conte(t, both internally and
in relation to the other circumstances $bviously, it is not possible to carry out this
analysis during the time that the material is accessible during the course of a
court hearing
7urthermore, it is not possible for +ulian Assange to utilise the rights that he is
entitled to in Chapter -1 C 5a of the 8rocedural Code in an effective and forceful
manner if he is not given the possibility to ma)e reference to and use the material
before the court which he considers to be necessary in order to challenge the
arrest decision
The prosecutors' decision not to hand over copies of the material and the Court of
Appeal's decision not to allow an oral hearing means that +ulian Assange is
prevented from ma)ing reference to and using the content of the S0S in an
effective manner and the court also does not have the possibility to test their
significance in relation to the matter of evidence
Therefore +ulian Assange ma)es a '!"i!n that the Court of Appeal compel the
prosecutors to hand in the material that contain the complainants' S0S to +ulian
Assange and?or the Court
!n the case that the Court of Appeal decides that it will not accede to this re*uest,
and given that the matter falls in the ambit of 2& law, he ma)es a '!"i!n,
secondly, that the Court of Appeal ma)e an application to the 2uropean Court of
+ustice for a preliminary ruling in relation to whether it follows from Article A of the
%irective that the prosecutor must hand over copies of materials that the suspect
has been able to see and wishes to invo)e as the basis of his challenge on the
*uestion of a deprivation of liberty
= POS-*-ONS ON *4E REASONS (-.EN 12 *4E PROSEC+*ORS -N
OR/ER NO* *O 4O,/ A 3+ES*-ON-N( 7-*4 J+,-AN ASSAN(E -N
,ON/ON
The Court of Appeal has .paragraph 1 appendi( 5/ prescribed the prosecutors to
e(plain their reasons for not underta)ing interrogations of Assange in ,ondon
8
The reply from the prosecutors is essentially a repetition of their previous
statements The main reason they give for the preliminary investigation remaining
fro9en Enow for over four years E is that i# a *uestioning of Assange in ,ondon
were to lead to Fa trialG in Sweden, Fit would not be able to be carried out
anywayG As we have already e(tensively e(plained in our appeal, see especially
s :f, this is not a reason provided for in law for the prosecutors' passivity in
relation to a preliminary investigation
!n filing 10, the prosecutors mention some additional circumstances, which
according to the prosecutors would e(plain this total passivity They mention
especially supposed perceived problems regarding service .-4>1; service, service
of a summons application or summons to appear at the hearing / and that
interrogation and %"A swabbing with Assange cannot be carried out in &nited
<ingdom 'without consent'
!t is difficult to follow their logic
'hen it comes to statements about future, perceived serving problems, it is
obvious that such practical, and hypothetical, problems cannot 3ustify under any
conditions that a prosecutor interrupt a preliminary investigation which could be
progressed
'hen it comes to interrogations, a suspect always has an unconditional right to
refuse to answer *uestions There is therefore no difference, from the 'consent
angle', between conducting interrogations in ,ondon or in Sweden Holuntary
cooperation of the suspect is a necessary re*uirement in both scenarios
!n this actual case however, there is an e(plicit re*uest from Assange to conduct
interrogations 6e's been as)ing for this repeatedly for over four years !t should
also be noted that he already freely cooperated with interrogations on 40 August
-010
2cuador has also declared its readiness to assist in enabling the interrogations
!t is obviously incumbent on the prosecutors to meet +ulian Assange's and
2cuador's re*uests for an interrogation To halt wor) on a preliminary
investigation, which can be pursued, is never permissible and it damages the
interests of all parties .which we have already e(plained in our appeal/
'hen it comes to the %"A swabbing as a prete(t for being totally passivity for
over four years, the prosecutors' logic is also difficult to follow
The prosecutors have not re*uested a %"A@test from Assange, neither when he
was in Sweden nor after that The %"A issue only has limited relevance as
evidence .Assange has not denied that he had se(ual relations with the
complainants/ and in any case, Assange already had a %"A test The %"A test
9
occurred on A %ecember -010 when Assange handed himself over to British
authorities to be arrested under the 2A' This is clear from the attached 'agreed
statement of facts' .page 4;/, e(hibit 1 , a document drafted 3ointly by the parties
in con3unction with the legal e(tradition process in &nited <ingdom
The prosecutors' references to supposed difficulties with interrogations and %"A
swabbing are thus completely untenable as e(planations for not progressing the
preliminary investigation
The duty to progress the investigation not only violates domestic law but also the
3urisprudence of the 2uropean Court .see eg *obbertin v rance, Abdoella" v
'et"erlands, Adiletta et al v Italy/
The prosecutors' passive behaviour is, in and of itself, sufficient cause to rescind
the decision to arrest in absentia #escinding the warrant would force the
prosecutors to interrogate Assange They will no longer be able to hide behind the
claim that the arrest must first be e(ecuted 'e refer to our previous submissions
on this point
8. RE,A*-N( *O *4E R-S9 O0 E5*RA/-*-ON *O *4E +S: E*C.
!n filing 10, the prosecutors argue that 2cuador's decision on political asylum does
not carry with it immunity from the Swedish preliminary investigation, which we
have never argued +ulian Assange wants the preliminary investigation to be
progressed so that the unfounded suspicions against him are dispelled and his
deprivation of liberty comes to an end This is why he has repeatedly re*uested to
be *uestioned in ,ondon 'hat Assange wants to avoid is to have to remain in the
embassy for the foreseeable future
The prosecution also tries to ta)e issue with not being aware of any formal &nited
States warrant to the &nited <ingdom for +ulian Asange's e(tradition
The fact that there is an ongoing preliminary investigation in the &nited States
against +ulian Assange and 'i)i,ea)s is clear from 0ichael #atner's affidavit .see
the appeal/ Chelsea 0anning, a former &S army private, has been sentenced to
4= years for being an alleged source of 'i)i,ea)s The video that was played in
the %istrict Court .which is submitted to the Court of Appeal in the form of the
provided &#,/ clearly shows that leading decision@ma)ers in the &nited States
have repeatedly stated that there is an intention to prosecute Assange in the
&nited States
There is therefore no doubt that Assange runs a concrete ris) of e(tradition to the
&nited States where he would face the same treatment as 0anning 2cuador has
granted Assange political Asylum to avoid the ris) that the same fate befalls
Assange !t is not for the prosecutor or the court to *uestion this decision, which
10
has been developed already in the appeal, see p 10
The fact that the &nited States is standing by is not unusual when it intends to
e(tradite a person 7ederal investigations often remain ongoing in secret for
many years before an indictment becomes public !t is also normal to wait until
the secret federal investigation is finished before issuing a re*uest for e(tradition
Another reason is the rule on precedence in the &nited <ingdom which means that
a &S e(tradition order would not be dealt with until the matter of e(tradition to
Sweden is finalised, see the affidavit of +ohn +ones, appendi( -
;. S+PP,E6EN*S /+E *O *4E /EC-S-ON 12 *4E CO+R* O0 APPEA,
NO* *O 4O,/ AN ORA, 4EAR-N(
A conse*uence of the Court of Appeal's decision not to hold an oral hearing is that
the film that we showed during the %istrict Court hearing cannot be shown before
the Court of Appeal 'e therefore provide the lin) to the video
http>??wwwyoutubecom?watchIvJb@%!Kvc<:#c
Assange ma)es a '!"i!n that the Court of Appeal views the video in the lin)
1A $ctober -011
Thomas $lsson 8er 2 Samuelson
11