September 28, 2012

Some legal aspects of extradition of Assange from Sweden to the United States

Flashback by: Aleksanterinkatu 

Here are some legal aspects of extradition of Assange from Sweden to the United States.

In Sweden, the government decides on extradition. The government, however, is to some extent bound by the court order. If HD finds that "prevent extradition is" under Extradition Act to get the government does not decide to disclose to the person concerned. Therefore, the government can not in advance provide guarantees for other countries to release a person. To provide such a guarantee would be intruding on judicial decision area.

Swedish law does not prevent the government from inverted to provide a guarantee to a person not to disclose it to another country. It does not interfere with the courts decision area, because HD only to answer the question of "prevent extradition exists". The government can refuse extradition even if HD decided that barriers do not exist. This has happened in at least one case, involving a Russian citizen.

For the United States, there is an additional factor that restricts the government's freedom of action. Sweden has a bilateral extradition treaty with the U.S.. Under the Agreement, the extradition happen if certain criteria are met. This has been interpreted as the debate that Sweden did not "take issue", but it is a truth with modification. The snag is that it is Sweden that interprets the agreement.

It is unlikely that Sweden would find someone under the agreement must be disclosed, but still do not. It would in that case a breach of contract. But if Sweden interprets the agreement so that the criteria for extradition are not satisfied, and therefore rejects extradition, so is it all right legally. Sweden's decision can not be reviewed, as I understand it. The situation is analogous to the English Supreme Court recently considered whether a breach of procedure, and (unanimously) concluded that it did not. Since the SC is the final instance the case is clear, legally, though their argument was weak.

What deters Sweden from an interpretation of the extradition treaty that the United States does not agree with is that relations with the U.S. would deteriorate and that it would be difficult to get the sought after extradited from the U.S. in the future. But this is on a political level, not a legal one.

This reasoning assumes of course that the provisions of the extradition treaty with the United States leaves some room for interpretation. But of course it is. For example, we Article III:

First Subject to the provisions of paragraph 2 of this Article, extradition shall be granted for an extraditable offense committed outside the requesting state's territorial jurisdiction, if
a) the requested State courts would be competent to exercise jurisdiction under similar tedious units; or
the person sought is a national of the requesting state.

The agreement obligates not Sweden to extradite an Australian citizen to the United States for crimes not committed in the United States (unless the Swedish courts would have jurisdiction in the case).

And we have Article IV:

Extradition shall not be granted when any of the following circumstances exist:
If the offense by the requested State as political or connected with a political offense. (sid. 71)

"Associated with a political offense" gives the deal open to interpretation.

It has also been said that Sweden can not give any guarantees in advance, because you can not give any warranty that applies in all circumstances. That you can not give a blanket guarantee does not mean that you can not give specific guarantees. Moreover, one can devise a guarantee rather than a declaration of intent but as a ruling, by analogy with the ruling by the Tax provides us with, which they interpret certain tax. The government could, for example be able to say in advance that the alleged crimes committed in connection with what Assange made within Wikileaks business is something which is regarded as "connected with a political offense."

Now, I do not think Sweden will make any guarantees, but that's when, in my view, for political reasons, not legal.
Last edited by Aleksanterinkatu at 2012-09-23. 21:31.

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