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