Assange, the law of limitation, and the next eight days

11th August 2015

In a few days time, unless something unexpected happens, Julian Assange will no longer be facing three of the four potential charges against him in respect of what happened in Sweden in August 2010.

This is because of the Swedish law of limitation which for certain offences means that the suspect has to be charged within five years of the alleged incident.

The alleged incidents occurred on the following dates: two in respect of 13-14 August 2010 (the complainant AA); 17 August 2010 (the complainant SW); and 18 August 2010 (the complainant AA).  The details of the alleged incidents are set out in the European Arrest Warrant of 26 November 2010, which I have set out fully here.

Of the four alleged incidents, the three relating to AA are the ones which may become time-barred in the next few days.  The remaining alleged incident, concerning SW, has a ten year limitation period.

In essence, unless something unexpected happens, Assange will be free of all three allegations concerning AA on 18 August 2015, that is a week today.

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This, of course, seems counter-intuitive.  It surely cannot be the case that Assange can rely on his own refusal to go to Sweden to escape answering the allegations. However, this does seem to be the case.

It would seem that, in the circumstances, any charge will require an investigation to close; and, in turn, for an investigation to close requires there to be an interview with the suspect.

I asked the Swedish Prosecution Authority (SPA) if there was anything it could do before 13-18 August to charge Assange or whether that, as things stand, was impossible.  I also asked if it would still be seeking to pursue the one remaining potential charge after 18 August, with the longer limitation period.  The SPA’s response was:

“As long as the prosecutor does not receive permission to interview Assange at the Ecuadorian Embassy, there is nothing else she can do before 13-18 August. An interview is necessary for the investigation.

“If the prosecutor does get the permission, she will issue a press release on our web page: www.aklagare.se, presumably on 13 August. The press release will be translated to English and will also state what she intends to do with the remaining rape allegation.”

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How has this situation come about?

For a long time one of the staple arguments of supporters of Assange was that the SPA should come to London to interview Assange.

This contention was addressed at point “Four” of my post here (which sets out the then SPA position).

In March 2015, however, the SPA changed its position and requested to interview Assange in London.  A spokesperson for Assange welcomed the development and said Assange wanted to be interviewed.

This was followed in June 2015 by a formal request to the English and Ecuadorean authorities.

But the SPA were not able to proceed as Ecuador did not give the requisite permissions.  The trip to London by a Swedish prosecutor had to be abandoned.

And then, last week, the SPA said that Ecuador were now demanding a precondition to which the SPA could not lawfully agree:

“The demands are in complete violation of our principles of justice.

“As a condition to let Assange be heard they [Ecuador] have demanded a special agreement in which Sweden recognizes asylum status for Assange. But the government cannot make such a commitment because it is the Migration Board which decides whether or not a person has the right to asylum.”

So this is where the matter currently stands.

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If charges are not brought in respect of the three allegations concerning AA on or before 18 August 2015 (and assuming nothing unexpected happens in the meantime) then the SPA will have to consider whether to continue with the remaining potential charge.  One would assume that they will do so, as it is the most serious of the four potential charges; but at this stage one cannot be certain – any prosecution authority has to keep matters under review.

Assange also still faces liability in England and Wales for breach of his bail conditions.

He cannot just freely walk out of the embassy on Thursday next week.

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Why can the SPA not interview Assange at the Ecuadorean Embassy?

The SPA are prepared to come to London; and Assange’s spokesperson is quoted as saying that Assange is willing to be questioned.

The most probable explanation is, of course, that the Ecuadorean government are coming up with mere excuses now that the SPA called the bluff in March 2015.  It seems unlikely that the latest demands – that the SPA agree to something it cannot lawfully agree to – can be sincere.  Sincere and co-operative governments do not make impossible demands as pre-conditions.  Accordingly, in my view the pre-condition is a sham.

There may, however, be other explanations – the preceding paragraph is a statement of opinion, not of fact.  On the current evidence, one cannot yet be certain: this is a situation where diplomacy. law, procedure and media presentation mix – and so things are not clear to the onlooker

But the one thing which seems fairly certain: if Assange waits just another eight days then, barring something unexpected, he will never be required to formally answer three of the four allegations about what happened in August 2010.

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