Five years confined: New Foia documents shed light on the Julian Assange case
By Stefania Maurizi
Published in Espressonline, 19 October 2015
The Scotland Yard agents encircling the embassy and guarding Julian Assange night and day have been removed. But the police siege which is estimated to have cost 12 million pounds over the last three years is far from over, as the Metropolitan police admits in its press release: Scotland Yard «will make every effort to arrest him», deploying «a number of overt and covert tactics».
He has been confined in the Ecuadorian embassy in Knightsbridge since June 19th, 2012. Next December 7th will mark five years since the founder of WikiLeaks lost his freedom, ending up first under house arrest and then confined in the embassy in a roughly 20 square-meter room. «Despite the efforts of many people», wrote Scotland Yard last week, «there is no imminent prospect of a diplomatic or legal resolution to this issue». A clear admission that the judiciary case against Julian Assange has become a legal and diplomatic quagmire.
L'Espresso has filed two comprehensive Freedom of Information Act (Foia) requests in Sweden and Britain to access the Assange file and reconstruct the case. We have requested documents from the Swedish Prosecution Authority in Stockholm – which has been conducting a criminal investigation for the last five years on Assange, still in its preliminary phase - and from the "Crown Prosecution Service" in London, the principal prosecuting authority for England and Wales, which has provided support to the Swedish Prosecution Authority on the Assange case. While the British have rejected all of our Foia requests, the Swedish released 226 pages of documents to l'Espresso.
Whether these pages represent a major portion of the Assange file or only a small set of documents is hard to say. To our request on the exact number of pages held by the Swedish Prosecution Authority, the Swedish replied that it was impossible to say, as many documents only exist as individual electronic documents, requiring too many resources to count all the pages. Instead the Crown Prosecution Service replied that the task was not possible for the opposite reason: the information is voluminous and mostly held in paper format, hence ascertaining the exact number of pages would be too time-consuming and expensive.
The files obtained under Foia reveal that from the very beginning, the "Crown Prosecution Service" in London advised the Swedish prosecutors against the investigative strategy that could have led to a quick closure of the preliminary investigation: questioning Assange in London – as he has requested on many occasions - rather than extraditing him to Stockholm, as the Swedish prosecutors have always tried to do.
In January 2011, not even two months after Julian Assange had been arrested in London, a lawyer at the Crown Prosecution Service, Mr. Paul Close, strongly advised the Swedish magistrates against questioning the WikiLeaks' founder in London. According to Close, the appropriate strategy was to interview him «only on his surrender to Sweden and in accordance with Swedish law». Writing to the Swedish prosecutors, Mr. Close sustains that «it is simply amazing how much work this case is generating. It sometimes seems like an industry. It is certainly non stop. Please do not think that the case is being dealt with as just another extradition request».
The documents also reveal that in April 2015 – a month after Swedish prosecutor Marianne Ny had changed her mind and finally agreed, after almost five years of legal paralysis, to question Assange in London at the Ecuadorian embassy –WikiLeaks' founder promptly agreed to the questioning and to providing a DNA sample. The questioning was supposed to take place in London the 17th and 18th of June, as agreed upon by the parties, but the Swedish contacted the Ecuadorian authorities for permission and assistance only at the last minute, so the questioning, awaited by Assange and the Swedish prosecutors for years, was ultimately aborted.
Five months that shook the world
It all began in August 2010, less than a month after WikiLeaks had published the US secret documents on the Afghan War, infuriating the Pentagon and the US government. On August 20, 2010 the Swedish prosecutors opened an investigation on Julian Assange, requesting his arrest for the suspected rape and sexual molestation of two Swedish women. The case immediately collapsed, however: the Swedish prosecutor, Eva Finne, revoked the arrest and terminated the preliminary investigation on rape, whilst preserving the investigation on sexual molestation. Assange was questioned by the Swedish police about this episode the 31st of August. The next day a different prosecutor, Marianne Ny, reopened the rape investigation after Mr. Claes Borgström, the lawyer for the two women, asked Marianne Ny to review the case.
On September 27, Assange flew for Berlin to meet, among other journalists, l'Espresso. Two weeks before Assange left Sweden, his Swedish lawyer at that time, Björn Hurtig, had asked Marianne Ny whether there were any problems with Assange leaving Sweden. «By telephone», writes Ny in a document handed over to l'Espresso, «Mr. Hurtig was informed that there were some investigative measures still outstanding before a new interview with Julian Assange would be relevant and that there was no arrest warrant issued for him».
Since there was no hindrance, Assange left Sweden, flying to Berlin where he met l'Espresso the 27th of September, late in the evening. When he arrived at our appointment, he explained that his luggage had been lost in the direct flight from Stockholm: only his shoulder bag containing his laptop was left. As a matter of fact, he arrived at our appointment with only the shoulder bag, laptop and a clear plastic bag containing a t-shirt, a toothbrush, and some small bottles of soap, as l'Espresso immediately reported in an article . It was that 27th September that the Swedish prosecutor Marianne Ny ordered the arrest of Julian Assange in absentia.
The preliminary investigation conducted by Marianne Ny focused on three alleged crimes: rape (less serious crime), unlawful coercion and sexual molestation. In the documents released to l'Espresso, Ny reconstructs the difficulties in interviewing Assange in 2010, when in five short months Assange and his organization were publishing a deluge of secret US documents never seen before. While Ny reconstructs these difficulties, Björn Hurtig reminds prosecutor Ny that he had suggested various dates for the questioning of his client: «Neither the times we had then suggested nor another occasion suggested were acceptable to you; on some occasions, our proposed times were too far in the future (a few weeks time); another occasion, one of your investigator was ill», Hurtig writes, adding that it seems «strange that a hearing could not take place because an investigator was ill».
Marianne Ny forges ahead, ordering the detention of Julian Assange: «this measure is taken as it has been impossible to interview him during the investigation», writes the Swedish Prosecution Authority in its website. To execute the detention, Ny issues a European arrest warrant for Assange and on December 1st, 2010, an Interpol red notice makes him wanted all around the world. Six days later, Assange turns himself over to the police while in London, where he had just started publishing 251.287 cables of the US diplomacy in collaboration with the Guardian and with a team of international media. A few days after his arrest, Assange is granted bail, sent to Ellingham Hall under house arrest with an electronic bracelet tracking his every move. Since 2010, Julian Assange has always opposed the extradition to Sweden requested by Marianne Ny to perform an interview with him. Ny has always insisted that questioning him in the embassy «would lower the quality of the interview», whereas Assange has always fought extradition to Sweden, convinced that it paves the way to extradition to the US, where there is an ongoing investigation on the publication of the US secret documents by WikiLeaks.
A special extradition?
To put on paper that the extradition case of Julian Assange is not an ordinary extradition is a lawyer at the Crown Prosecution Service in London: Mr. Paul Close. In an email to the Swedish prosecutors dated 13 January 2011, Close writes: «It is simply amazing how much work this case is generating. It sometimes seems like an industry. It is certainly no stop. Please do not think that the case is being dealt with as just another extradition request». What makes the Assange case special? Mr. Close does not explain this. However, in his email exchange with the Swedish, he seems pleased that two days earlier, the 11th of January 2011, the extradition hearing at the Belmarsh Magistrates' Court was not exactly an exciting event for journalists: «It was all rather boring and technical, which of course is precisely what I wanted to happen».
Two weeks after these comments, January 25th 2011, Paul Close is even more straightforward with the Swedish prosecutors: «My earlier advice remains, that in my view it would not be prudent for the Swedish authorities to try to interview the defendant in the UK». «Any attempt to interview him under strict Swedish law”, Close continues, «would invariably be fraught with problems». He therefore concludes: «Thus I suggest you interview him only on his surrender to Sweden and in accordance with the Swedish law. As we have discussed your prosecution is well based on the existing evidence and is sufficient to proceed to trial, which is the prosecution's intention». The following couple of paragraphs of this email were censored and not released under the Foia.
Two things are interesting in this email exchange between the Crown Prosecution Service' lawyer and the Swedish prosecutors: Paul Close uses the word “defendant” in referring to Assange, a term which under English law indicates an individual who has already been charged with a crime, whereas in January 2011 the WikiLeaks' founder had not been charged, nor has he been charged with a crime in the last five years. In addition, Close claims that the Swedish prosecutors already intended to bring Julian Assange to trial, even before any questioning had taken place. It should be noted that just six days before this email, Marianne Ny had sent a letter to Mr. Paul Close explaining: «According to the Swedish law, a decision to prosecute may not be taken at the stage that the preliminary investigation is currently at. The decision concerning prosecution, i.e. legal proceedings, may not be made until the preliminary investigation has been concluded».
L'Espresso filed a comprehensive Foia request to the Crown Prosecution Service asking for access to the entire Assange file, including the full correspondence, if any, with the US Department of Justice and with the US State Department. Our Foia has been rejected in full. To our request to acquire any correspondence with the US authorities, the Crown Prosecution Service replied: «we neither confirm nor deny whether we hold any relevant information». Whereas the Swedish Prosecution Authority and the Swedish Ministry of Justice replied that «there has been no correspondence between Sweden and the US regarding the Assange case».
A diplomatic impasse that joins a judicial paralysis
From 2010 until March 2015, the Swedish investigation remained at a standstill: Stockholm prosecutors have always insisted on extradition as the only solution to question Assange and decide whether or not to charge him once and for all. Assange has always opposed extradition tooth and nail, fighting it in the UK and Swedish courts without success. When, in June 2012, he exhausted all his legal options to resist extradition, he took refuge in the Ecuadorian embassy in London, Knightsbridge, where Ecuador granted him political asylum, as the Ecuadorian authorities judged that the risk of Assange being extradited to the US and prosecuted for his journalistic work is well-founded.
Since June 19, 2012, Assange is confined to the embassy in precarious conditions: he has no access to a garden or even to a small courtyard where he could enjoy a breath of fresh air and sunlight, so indispensable for his health. This turn of events has added a diplomatic impasse to the judicial paralysis, as the British authorities have always declared that under no conditions will they offer a safe passage to allow the WikiLeaks' founder to leave the embassy and enjoy asylum. Last week, Assange's lawyers and the Ecuadorian authorities denounced that the British are denying him safe passage to a hospital for an MRI scan to diagnose the causes of severe pain. As for Sweden, it has always rejected the idea that Assange took refuge in the Ecuadorian embassy because the risk of extradition to the US is real: Sweden considers his confinement in the embassy as a merely voluntary choice, which he could reverse any time.
This diplomatic impasse seems as intractable as the judicial paralysis. In November 2012, as revealed by a document released to l'Espresso under Foia, a British diplomat tried to meet Marianne Ny. «I have no idea why the Brit Vice-Ambassador wants to meet with you," writes the Crown Prosecution Service's lawyer, Paul Close, to Marianne Ny, who apparently had asked him about the diplomat: «I can but assume that as you mix in those social circles it is hardly surprising!».
The very long-awaited questioning
Only in March 2015, the Swedish prosecutor Marianne Ny agreed to question Assange in London, at the Ecuadorian embassy. What made Ny suddenly change her mind after almost five years? According to the Swedish Prosecution Authority, two facts made Ny accept this possibility: the incumbent statute of limitations for two of the alleged crimes – sexual molestation and unlawful coercion, due to expire in August 2015 – and the fact that in November 2014, the Stockholm Court of Appeal, while rejecting Assange's request to lift the arrest warrant, had criticized Marianne Ny for lack of progress in the criminal case, issuing a clear press release: «The Court of Appeal notes, however, that the investigation into the suspected crimes has come to a halt and considers that the failure of the prosecutors to examine alternative avenues is not in line with their obligation – in the interests of everyone concerned – to move the preliminary investigation forward».
Asked by the Swedish prosecutors whether he consented to questioning in the embassy on the 16th of April 2015, Julian Assange confirms, through his current Swedish lawyers, Thomas Olsson and Per Samuelsson, that he agreed to be questioned in the Ecuadorian Embassy in London and to provide a DNA sample. The parties agree that the questioning and the acquisition of DNA should take place the 17th and 18th of June. However, the documents released to us under Foia reveal that the Swedish authorities contacted the Ecuadorian ambassador in London, Juan Falconi Puig, at the very last minute to ask him for permission and assistance. The 12th of June, Marianne Ny realized that the Ecuadorian ambassador has not yet received «any communication from the Swedish authorities».
As a matter of fact, the long waited interrogation aborted. Assange's lawyer, Per Samuelsson, explains to l'Espresso what he thinks made the questioning collapse: «One prosecutor travelled to London together with a police-officer. When they were in London Marianne Ny, their boss, cancelled the whole thing due to the fact that Sweden had not gotten the permission from Ecuador. Sweden applied way too late». The documents obtained by l'Espresso confirm that the Swedish investigative team sent to London did not get access to the embassy because the Ecuadorian authorities had been contacted by Sweden too late. «I am sure you are informed that a diplomatic procedure has to be followed. At this point I have to inform you that I am being transferred to a new post as Ambassador», Juan Falconi writes to Ny the 19th of June, adding: «Therefore, as from July this affair will be handled by the new Ambassador, Mr. Carlos Abad Ortiz».
Last August, Marianne Ny discontinued the investigation on two of the alleged crimes: unlawful coercion and sexual molestation due to statute of limitations. On that occasion, the Swedish prosecutor declared: «Julian Assange, on his own accord, has evaded prosecution by seeking refuge in the Embassy of Ecuador», and adding: «Since the autumn of 2010, I have tried to gain permission to interview Julian Assange, but he has consistently refused to appear. When the statute of limitation approached, we chose to attempt to interview him in London. A request to interview him on the premises of the Embassy of Ecuador was submitted in the beginning of June, but a permission has yet to be received». No mention at all of the Swedish authorities’ tardiness in contacting Ecuador.
With the statute of limitations, both the two Swedish women and Julian Assange lost any opportunity to obtain justice for two of the three alleged crimes under investigation since 2010. Under Swedish law, a person under investigation cannot oppose the statute of limitations, as the Swedish Prosecution Authority confirmed to l'Espresso. So the WikiLeaks' founder cannot reject the statute of limitations in an attempt to prove his innocence and clear his name. The Swedish preliminary investigation on Julian Assange is proceeding with respect to what Swedish law considers the less serious category of rape: Assange allegedly had unprotected sex with one of the two Swedish women while she was asleep. Apparently, they had had sexual intercourse before that episode and she had expressed wish that a condom be used. The statute of limitations for this alleged crime will expire in August 2020. Will Assange ever be questioned?