News

Is Julian Assange's Latest Legal Setback the End of the Road for the Wikileaks Founder?

Getting your appeal thrown out by a country's Supreme Court sounds pretty final, but the Wikileaks founder has ways to continue fighting the accusations of rape and sexual assault that have dogged him for years.

by Mike Pearl
13 May 2015, 5:00am

Via VICE Meets Julian Assange

On Monday, Wikileaks mogul Julian Assange got some bad news from the Swedish Supreme Court: It tossed out the appeal he filed against that country's warrant for his arrest over alleged sex crimes. A favourable ruling from the court likely would have meant that he could immediately leave the Ecuadorian embassy in London, where he's been holed up since 2012. The actual decision means Assange is still facing possible extradition to Sweden.

Looming over the European legal imbroglio is the fear on the part of Assange's allies that if he ever set foot back in Sweden to face the allegations, he might be extradited to the United States for publishing leaked military secrets.

Four of the five Swedish justices who looked at the case were unmoved by the Assange legal team's claim that being stuck in the embassy – where he's nominally protected from the rest of the planet – is a punishment disproportional to his alleged crimes. "Julian Assange's freedom of movement cannot be considered to be limited in practice in such a way that it is contrary to the European convention [on human rights]," their decision read.

The remaining justice, Svante Johansson, disagreed, and wrote a dissent arguing that the motive for keeping Assange under threat of arrest didn't "outweigh the intrusion and inconvenience" to his existence in the meantime.

So has Assange exhausted his legal possibilities? And how much longer will he be making weird pronouncements from his lair?

"I think he will have a difficult time arguing that he should not be extradited to Sweden to face normal criminal charges, unless he can establish persuasively that this is an abuse of process with political motivations," Payam Akhavan, a human rights–focused lawyer and professor at Canada's McGill University told VICE by email, referring to the idea that the international community might block his extradition.

The normal criminal charges in question stem from accusations that Assange raped one woman and sexually assaulted a second in 2010.

Assange's accusers' version of events was detailed at length five years ago. In short, the sexual assault investigation includes potential charges of rape, molestation and "unlawful coercion," over the course of a bizarre ten days Assange spent bumming around greater Stockholm. This was all about two months after Chelsea Manning (at the time named Bradley) was arrested in the US for using Assange's Wikileaks organization to expose the notorious "Collateral Murder" footage, which showed Iraqi civilians being killed en masse in a 2007 airstrike, among other info.

But even after this ruling from the Swedish Supreme Court, Assange is still hoping to avoid facing actual charges via several legal avenues. Due to a quirk in Swedish law, he isn't technically facing any of these charges yet, and is just "wanted for questioning." Formal charges happen "late in the legal process" in Sweden, according to the Guardian. At this point, the distinction between being questioned and being charged is one of the rays of hope for Assange's defence.

Since 2012, Ecuador has been pushing to have Assange questioned by Swedish prosecutors in the embassy where he lives, instead of in Sweden. This prosecutorial questioning is an essential part of the Swedish legal process that determines if charges can be brought at all. In March, Marianne Ny, the Swedish prosecutor working the case, agreed to proceed with this plan. Her reasoning, she explained, was that the statute of limitations on some of the charges against Assange expires in August, so the clock is ticking.

In March, Ny told Bloomberg that performing the interview in London is likely to "lower the quality of the evidence," but, she said, it's "necessary to accept such deficiencies to the investigation, and likewise take the risk that the interview does not move the case forward, particularly as there are no other measures on offer."

Related: We talked to Julian Assange back in 2013.

Assange's Swedish lawyer said of the prosecutor's reversal, "It is a victory for us," calling it "the route to acquittal."

In addition to winning the opportunity to get interrogated by his prosecutors in the hopes, perhaps, that the sex crime allegations will be dropped, Assange is also hoping that Sweden will guarantee his safety from extradition to the US. Sweden is mulling over a formal request to that effect by Argentina. The request isn't about Assange directly, but would apply to him, and Sweden is scheduled to make a decision about this on June 15.

Extradition to the US is a scary prospect for Assange. The Obama administration has a reputation for prosecuting leakers, which spells danger for Assange, who of course has made a name for himself by publishing classified material whenever he can. In 2013, the possibility of prosecution in the US was thought to be remote, with the Washington Post citing officials in the Justice Department saying they were up against what they call the "New York Times problem." Simply put: Assange isn't the only self-styled journalist ever to publish classified material, and the Justice Department can't prosecute every one that does. Nonetheless, a multitude of reports suggest a criminal probe is ongoing.

Is there any way for Assange to go to Sweden to deal with the charges there and dodge extradition? Short answer: yes. According to a 2012 Guardiancolumn by Seumas Milne:

The solution is obvious. It's the one that Ecuador is proposing... If the Swedish government pledged to block the extradition of Assange to the US for any WikiLeaks-related offense... and Britain agreed not to sanction extradition to a third country once Swedish proceedings are over—then justice could be served.

Michael Ratner, one of Assange's lawyers, told the New York Times last year that his treatment by the UK is "astonishing," and that Assange "continues to be detained without charge, and the court concedes that this can continue for years to come."

This assertion might give them a place to make their appeal above and beyond the Supreme Court of Sweden: the European Court of Human Rights (ECHR). Assange's lawyers argue that unlike the Swedish Supreme Court, the European Court of Human rights will view his confinement as disproportional, and this kind of thinking about "proportionality" is a critical legal doctrine in the ECHR.

Akhavan, the human rights lawyer, thinks the claim about proportionality "would be a difficult case to make," since extradition cases at the ECHR hinge on avoiding mistreatment in another nation, in this case Sweden.

"The basic principle is that where there is a real risk of ill-treatment in another state, the obligation not to send an individual to that state is an absolute one—it cannot be claimed that public interest reasons for deporting or extraditing an individual outweigh the risk of ill-treatment on the individual's return, regardless of the offence or conduct," he told VICE.

In some ways, this is a war of attrition. In the year 2020, the last of Assange's potential charges will melt away courtesy of the statute of limitations on the rape allegation. And the Guardian cited Anne Ramberg, head of Sweden's Bar Association, suggesting the latest Supreme Court decision actually opens the door for a more generous concept of proportionality in the future. Between now and then, if he keeps himself cooped up, without sneaking out, perhaps in a car or "diplomatic bag," Assange might eventually be able to just walk out the front door. In fact, that's starting to look somewhat likely.

Then again, the UK government has claimed that British police would be within their rights to storm in and drag him out of his bed, and out of their country, at any time. They'd just have to give a week's notice first.

Follow Mike Pearl on Twitter.

Correction: A previous version of this article referred to "70 alleged crimes." The number has been entirely removed, and the sentence now reads "alleged crimes." We regret the error.