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Sweden: District Court Says Issuing Detention Order for Assange Not Proportional

(June 14, 2019) On June 3, 2019, Uppsala District Court issued a judgment denying a request to issue a detention order for Julian Assange. (Uppsala Tingsraett [Uppsala District Court], Case No. B 3167-19 (June 4, 2019) (in Swedish), on file with author; see also Press Release, Uppsala District Court, Decision Concerning an Application for a Detention Order in Case B 3167-19 (June 3, 2019), Uppsala District Court website (in Swedish).)

Under Swedish law a person may be detained during the investigation stage if there is probable cause that he or she has committed a crime punishable by one year of imprisonment and if there is a risk that the person will “fail to appear or in some other way avoid participation in the investigation and the following proceedings.” (24 kap. 1 § RAETTEGAANGSBALK [RB] [CIVIL AND CRIMINAL PROCEDURE CODE] (SFS 1942:740), Riksdagen [Parliament] website (all translations by author).) As Assange has previously evaded questioning in Sweden, the Court found that there was indeed such a risk. (Id.)

The Court relied on the analysis and considerations made by the Swedish Supreme Court in its 2015 decision to continue the pretrial detention of Assange. (Hoegsta Domstolen [Supreme Court] Case No. OE 5880.14 of May 11, 2015, Hoegsta Domstolen website (in Swedish); see also Elin Hofverberg, Sweden: Supreme Court Affirms Pre-Trial Detention of Julian Assange, GLOBAL LEGAL MONITOR (June 15, 2015).)

The Swedish Supreme Court in 2015 found that two conditions were necessary to make the arrest proportional:

  1. The arrest must enable the investigation to proceed.
  2. No less invasive measures that could yield the same result are available.

Court Evaluation

Applying the test of whether there are any less invasive measures, the Court found that because Assange is currently under arrest in London, Swedish prosecutors could ask for a European Investigation Order that could allow them to question Assange to proceed with the investigation. (Case No. B 3167-19.)

Arguably, a European Investigation Order works as an alternative to a European Arrest Warrant and enables a number of investigative tools without an arrest warrant. (Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 Regarding the European Investigation Order in Criminal Matters, 2014 O.J. (L 130) 1.) For example, article 23 of the EU Directive Regarding the European Investigation Order in Criminal Matters specifically allows for the transfer of an incarcerated person to another requesting EU country (except Denmark and Ireland). Sweden has transposed the Directive through the Act on European Investigation Order and could request a transfer as part of the investigation order. (12 § LAG OM EN EUROPEISK UTREDNINGSORDER (SFS 2017:1000), Riksdagen website.)

Thus, according to the Court, unless the Swedish prosecutors are unable to obtain a European Investigation Order, or if the investigation order does not enable the prosecutor to complete its investigation, the principle of using the least invasive coercive measure prevents the Court from issuing an arrest warrant for Assange. (Case No. B 3167-19.)

The Swedish Court decision may be appealed no later than June 24, 2019. (Id.)

The current case against Assange, rape, is subject to a ten-year statute of limitations that will run unless charges are brought before August 2020. (35 kap. 1 § 3 RB.)