Where In The World Can You Get A Fair Trial?

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WikiLeaks founder Julian Assange has been in court this week fighting extradition to Sweden over rape and sexual assault charges. The hearing has attracted widespread international attention, and the usual parade of celebrity supporters.

Assange’s defence team called four witnesses during the two-day hearing, focussing on the credibility and conduct of the Swedish prosecutor. But the main grounds for their defence was the question of whether Assange could receive a fair trial in Sweden.

New Matilda spoke to freelance journalist Luke Donald, who is in London to report on the proceedings.

"During Assange’s bail hearing in December the prosecution had a junior lawyer who was pretty hopeless," Donald told New Matilda. "This time they’ve brought out the big guns. The new barrister acting for the prosecution, Clare Montgomery QC, was very astute and very good."

"In contrast, Assange’s legal team seemed to be stumbling. Geoffrey Robertson QC was lost in his papers for half the day yesterday."

A key witness in the defence case was Swedish lawyer and former judge Brita Sundberg-Weitman, who was wheeled out to cast doubt on the motives of Swedish prosecutor Marianne Ny.

"Sundberg-Weitman told the court Ny was a ‘radical feminist’ who believed men should be prosecuted regardless of sufficient evidence of sexual assault, so as to set an example for other men," said Donald.

In her affiadavit Sundberg-Weitman stated:

"Ms Ny … is known to have said that when a woman says she has been assaulted by a man, the man ought to be detained because it is not until he is in prison that the woman may have the peace to consider whether or not she has been mistreated.

"Ms Ny has stated that she believes imprisoning the man has a positive effect, ‘even in cases where the perpetrator is prosecuted but not convicted’."

"The defence also argued that the Swedish prosecution system is highly politicised and that Marianne Ny — who is a member of the Social Democrat Party and has been instrumental in changing Swedish law to make it more favourable to women — was motivated by political prejudice in the prosecution of Assange," said Donald.

Sundberg-Weitman continued:

"It is a fact that people like Marianne Ny and [lawyer for the complainants]Claes Borgstrom have worked in cooperation on different issues in efforts to produce our new, more stringent sexual offence laws.

"It is a fact that Marianne Ny was one of the experts on the recent law reform committee which published a report in 2010 recommending even more harsh sexual offence legislation.

"It is a fact that Marianne Ny agreed with and approved the contents of that report which concluded that, unlike the law of England and Wales, Swedish rape law is not based on a lack of consent and which specifically rejects any recommendation that Swedish law be amended to adopt the English law approach where rape is based on consent.

"…although some reforms have been welcome, there is a concern that others are actually producing unfairness and discrimination against men."

"Sundberg-Weitman’s was a convincing argument," Donald told New Matilda. "But her testimony was greatly undercut by the prosecution. When they asked what dealings the witness had had with Ny, Sundberg-Weitman said she hadn’t had any — that her impression was based on what she’d read and heard about Ny from others."

Attacks on the Swedish prosecutor aside, whether or not the main grounds for Assange’s defence — that he won’t get a fair trial in Sweden — will satisfy the court is far from certain. "This is a big call, considering we are not talking here about an autocratic state but a fellow western democracy," says Donald.

The defence’s argument is based on the fact that sexual assault cases in Sweden are held in a closed court. "Robertson suggested that without the scrutiny of the media and public, witness testimony could not be trusted. He was also very critical of the fact that the police files on the case were leaked to the press, saying it had done enormous damage to Assange’s ability to get a fair trial," Donald told New Matilda.

The prosecution dismissed Robertson’s argument in court, saying if Sweden did not have a sound judicial system then no country does.

The agreement under which Sweden is attempting to extradite Assange, the European Arrest Warrant, was introduced post-911, and was initially designed to deal with terrorism and other serious cross-border offences. But according to Crikey’s Guy Rundle, it has been
responsible for many miscarriages of justice — and as Jago Russsell writes in the Guardian, Assange’s case is only the tip of the iceberg. The agreement fast-tracks extradition requests from other European countries, and also removes the discretion for the secretary of state, who could previously order or refuse extradition.

Under the EAW, only district judges have the power to refuse an extradition request from another European country — and even then, they have very limited discretion.

"Legal experts are saying they think this extradition will go ahead," Donald told New Matilda. "[To stop an extradition] under the European treaty you would have to make a very strong case that there’s been a major miscarriage of justice in the Swedish system." 

Yesterday the Swedish Prime Minister released a statement defending the Swedish legal system and saying the international media had got it wrong. "I spoke to a couple of Swedish journalists during the trial who told me the Swedes are shocked that their system is coming under such attack during this trial— especially the closed court idea for sexual assault, and the system whereby political parties appoint jurors in Swedish courts," said Donald.

The hearing is now expected to wrap up on Friday.

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