Criticisms of Swedish prosecutors, rape allegations and Julian Assange

17 Dec 10 | Uncategorized

There has been some criticism of the handling of the case against Wikileaks founder Julian Assange by the Swedish authorities. We asked Anne Ramberg, Secretary General of the Swedish Bar Association, to look at how the allegations square with Swedish legal practice.

Criticism 1: All parties to sexual misdemeanors should remain anonymous until conviction secured in Swedish law

The main rule is that information of the identity of an alleged, aggrieved/injured person is public. Under certain conditions, however, this type of information can be subject to secrecy. According to Swedish legislation (The Public Access to Information and Secrecy Act, Chapter 35, Section 12 and Chapter 43, Section 5 and 8 in conjunction with the Code of Judicial Procedure) information about the identity of a person suspected being a victim of a crime and other personal circumstances of that person may be subject to secrecy, if it is possible that making the information public could harm the party in any serious way. This regulation specifically applies to aggrieved persons in cases involving sexual crimes.

Criticism 2: In most countries to reinvestigate a case that’s been closed is considered an abuse of process if there¹s no further evidence

According to Swedish law a reinvestigation of a case requires further or new circumstances to be considered.

Decision to prosecute

Once the preliminary investigations have been completed, the prosecutor must decide whether or not to prosecute. If the prosecutor, on objective grounds, judges that there is sufficient evidence to establish that the suspect has committed an offence, he/she is obliged to prosecute. If a prosecution is initiated, it is the task of the prosecutor to prove to the court that a crime has been committed.

If there is insufficient evidence to prove that an offence has been committed, the suspect cannot be prosecuted. It could, for example, be because the suspect denies committing the offence or that there are no witnesses or forensic evidence linking the suspect to the crime. Sometimes it becomes apparent during the course of the preliminary investigation that it is not possible to prove that a crime has been committed. Under these circumstances the prosecutor decides to discontinue the preliminary investigation. A decision like this has the same significance as a decision to drop the charges against a suspect. In the case of both decisions it means that the preliminary investigations can be resumed if new information is received concerning the crime. The victim of the crime, the injured/aggrieved party, is always informed of the decision reached by the prosecutor.

Review

It is possible to request a review of a prosecutor’s ruling concerning, for example, a discontinued preliminary investigation or a decision not to bring charges. Requests for review are made by one of the Prosecution Authority’s prosecution development centres. If a request for a review is received by a public prosecution office, first of all the prosecutor who made the ruling shall decide whether or not any new circumstances have come to light in the matter. If new circumstances are cited, the prosecutor reconsiders his/her decision. If this reconsideration fails to result in any change to the original ruling, the matter is referred to the prosecution development centre. The same applies if there are no new circumstances to be considered in the case. At the prosecution development centre, the case will be reviewed by the Director of Public Prosecution, who will then make a decision on, for instance, the resumption of a discontinued investigation or that certain investigation measures should be taken. The case is then referred back to the original public prosecution office, but to a different prosecutor. Decisions made by a prosecution development centre can also be reviewed, and the matter will in this case be handled by the Office of the Prosecutor-General.

Criticism 3: Prosecution refusing to reveal texts exchanged between the two women

Circumstances on which the suspicions are founded are as a general rule subject to secrecy during the preliminary investigation.

Decisions to keep information included in the preliminary investigation confidential are usually based on considerations that publicity would impair the progress of the work, or that evidence, in case the information became public, could be destroyed. However, decisions on secrecy, especially in cases regarding sexual misdemeanours where there might be some delicate information, may also be referred to the consideration to the injured persons involved in the case.

The information in the preliminary investigation, with some exceptions, becomes public when the prosecutor decides to prosecute the suspect.

When the preliminary investigation has advanced so far that a person is reasonably suspected of committing the criminal 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.

Furthermore, 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.

Criticism 4 Sexual molestation is a minor offence

As you will see below, the range of punishment for sexual molestation is a fine or imprisonment for at most two years. Hence, I would say that sexual molestation indeed is regarded as a serious offence according to Swedish law.

Swedish legislation in question – the Swedish Penal Code:

Chapter 6

Section 1 – rape

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.

Section 10 – sexual molestation

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.

Chapter 4

Section 4 – unlawful coercion

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.

Criticism 5 The case has been influenced by political pressure

Any kind allegations concerning political interference in a specific legal case must be taken seriously and properly investigated if probable grounds for the allegations.

However, as Secretary General of the Swedish Bar Association, I am not in a position to give you any detailed information on the specific case regarding Mr. Assange. This case is, and evidently should be, tried in accordance with ordinary procedures as any other case where someone is suspected of having committed sexual criminal offences in accordance with the rules in the Swedish Code of Judicial Procedure.

To conclude I would like to add the following. When it comes to Swedish legislation on sexual offences the adjudication off such cases has been widely debated after the last legislative review some years ago. The main change made at that time included an extension of the definition of rape. That extended definition was criticised by the Swedish Bar Association and others for being too vague giving rise to demarcation problems. The Bar expressed concern with as a matter of the rule of law aspects. On the other hand there were those who wanted the legislation to go even further and introduce a requirement for consent. Recently such a proposal has been submitted to the government.

Shocking America

16 Dec 10 | News and features

As funders threaten to punish the US gallery that censorsed the first major US exhibition of gay art, Salil Tripathi looks at the fallout of America’s culture wars

(more…)

The fight to save Iran’s oldest art gallery

16 Dec 10 | Iran, Middle East and North Africa

Iran’s oldest gallery of contemporary art is under threat of closure. Tehran’s Seyhoun Gallery opened its doors in 1966, showcasing, launching and establishing many of Iran’s prominent 20th-century artists. Founded by the painter Massoumeh Seyhoun, the gallery fast became the hub for Iranian and international artists, exhibiting and hosting Andy Warhol in 1976.

During the 1979 revolution Seyhoun was herself imprisoned for one year for her display of “foreign extravaganza”, but re-opened the gallery upon her release, in spite of the significant change in social, political and economic climate, and continued, thereon promoting Iranian artists only.

Sohrab Sepehri, Faramarz Pilaram, Massoud Arabshahi, calligraphers Reza Mafi and (in its abstract form) Hossein Zenderoudi all exhibited at Seyhoun Gallery on Vozara Street in northern Tehran before becoming widely acclaimed outside Iran. In October this year sales of Sepehri’s work secured Sotheby’s a record auction. His Untitled (From the tree trunk series) painting sold for £409,250 more than double the pre-sale low estimate of £200,000.

After land costs soared for the Seyhoun Gallery spot following Seyhoun’s death earlier this year, plans to open a restaurant in its place have been exposed, causing uproar among Iran’s artist community who protested outside the gallery calling for the preservation of this historical site. “The footsteps of Iranian artists from Sohrab Sepeheri to Mokarameh Ghanbari can be heard though the walls of this gallery, and the demolition of this gallery means the demolition of the national and artistic identity of this country,” said Ahmad Nasrollahi, one of the artists. Maryam Seyhoun, the founder’s daughter and leading architect and artist (whose work was exhibited in a group exhibition with Picasso and Dali in Massachusetts in 1972) Houshang Seyhoun, argues that it is the gallery as a landmark that has in fact created the monetary value of the site, adding “This gallery belongs to all the people of Iran and should be preserved as a historical site”.

To sign the petition to save the Seyhoun Gallery click here

What’s in a name

26 Nov 10 | Iran, Middle East and North Africa

Index on Censorship today launches Iran Uncut, a special initiative to unearth and revitalise the plethora of archives of literary, artistic, photographic and other creative works by Iranians denied publication and expression in their homeland.

Pen names or pseudonyms have long been a facet of political and social identity, enabling and empowering otherwise forbidden expression.

Now millions of Iranians have created aliases in order to have a voice and actively engage in social and political online dialogue. An extraordinary community has developed of people inside and outside the country sharing thoughts and ideas, posting opinion on Facebook and Twitter and personal blogs. Many Iranians boldly go by their own names, risking intimidation and arrest. To the foreign eye the assumed names are no different, their pseudonyms not immediately recognisable as such in their phonetic Persian incarnations. But looking through activist pages on the net, they are there…along with Thunder Heart and Liss Nup are Tire Akhar, Irani Vatanparast, Mikrobe Siasi, Zibatarin Moosighi, Sokooto Dard, Gole Green, Na Mous, Zane Irani, Baghlava Rashti. To the non-Persian speaker these names blend in with the others as first and family names, but their verve is apparent to Iranians who instead read:  Freedom-of Expression, The-final Bullet, Iranian Patriot, Political Bacteria, The-most-beautiful Music, Silence and Pain, Green Flower, Hon Our [honour], Iranian Woman, and the humourous Baghlava Rashti, after the syrupy pastry.

Less humourous is the reality that necessitates this precaution. The regime’s cyber army is busy monitoring all these sites and Iran’s Ministry of Intelligence and Security last year expanded its activities to incorporate demanding Facebook passwords upon entry to the country, revealing individual’s profiles and most significantly the online company they keep. Other Iranians interrogated in detention report having to reveal email and Twitter account passwords. Outside the country “dissident” activity is under equal surveillance, with messages sent by intelligence agents that warn against posting “anti-government” discussion, and reported threats involving family still living in Iran.

Against this backdrop is the continued censorship of non-political writing, art, film, theatre, music, photography and other works deemed socially and culturally “inappropriate”. Some of these have already been seen at international festivals and through online networks. Index on Censorship wants to maximize this effort, with Iran Uncut presenting a forum for the open exhibition of creative talent from Iran to a wider audience. We welcome all your work and I look forward to communicating with you and sharing your ideas.
I shall go by the name of mahi siah-e kuchulu (the little black fish), in homage to the children’s story of that title and its author, the eloquent school teacher Samad Behrangi. The story, about a little black fish determined to discover the world beyond the little stream of her habitat, is a political allegory that sealed Behrangi’s fate and resonates today more than ever. You can read it here:

Please email me at: littleblackfish[at]indexoncensorship.org