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.
