6 September 2010

Assange Is Innocent Until Proven Guilty

Julian Assange should not be pilloried or dumped by supporters based on unproven allegations which have been erratically handled by Swedish officials. Below are the official notices from the Swedish prosecution office concerning Assange (search the website for "Assange") as translated by Google, followed by Swedish procedures for investigations and prosecution of crimes.

If supporters of Wikileaks think Assange should step aside as principal spokesperson due to unproven allegations of sexual misbehavior that is an excellent reason for him to stay in place. The rush to judgment appears to be based on media reports of incomplete police reports. Media and police reports are notoriously inaccurate. Media reports are always deficient and police reports are frequently disproven in court. The fainthearted should avoid helping the malevolent feed the beast.

The Swedish prosecutor has not made a final decision to do more than investigate the allegations. Assange should not be prejudged, instead endure the fray, ignore the frenzy, calm followers, defy opponents, as in the past, and continue with renewed strength from the tempering challenge.

There is nobody within Wikileaks with his capabilities to speak for the extraordinary initiative. His comments are customarily retrained, subtle, informative and deliberate, unlike the hyperventilation and exaggeration of supporters and detractors who seem incapable of grasping Wikileaks comprehensively and resort to impassioned exclamations which are never convincing. Nothing written or said about Wikileaks has been as constructive and inspired as what Assange has provided.

Contrary to calls for Julian Assange to step aside, purge the cowards, far greater challenges are yet to come. It has been a party so far, the smears mild and ridiculous. Based on others' experience, expect search and seizures, assets forfeiture, reputation destruction, informants, betrayals, deportations, indictments, prison, beatings, murder. Fear is more contagious than courage and it will be fostered by frightening the vulnerable. That fear will destroy Wikileaks from the inside by promoting "acceptable" behavior, by making covert accommodations with authoritatives, by stigmatizing combativeness, by warning of disaster. Assange is unmarried but his children are hostages, if insiders can't do it, the kids will be used to silence the messenger, to enforce obedience. Done often, read the evidence of common brutality to dissidents.

Official Notices of the Assange Case

2010-09-01 below

Investigation and Prosecution

http://www.aklagare.se/In-English/Outline-organisation-chart/

http://www.aklagare.se/In-English/The-role-of-the-prosecutor/

The role of the prosecutor

The prosecutor has three main tasks: to investigate crimes, to decide whether or not to instigate legal proceedings and to appear in court.

The prosecutor investigates crimes together with the police. He or she shall have contact with the person suspected of the crime, the victim and witnesses, and have close contact with the police.

Once the preliminary investigations have been completed, the prosecutor judges whether there is sufficient evidence to bring the case to court. If it is a minor crime, and the suspect admits his or her guilt, the prosecutor imposes a fine. This is referred to as an order of summary punishment, and no trial will be held.

If an action is initiated there will be a trial in a court of law. The task of the prosecutor is to prove that the suspect has committed the crime. He or she questions the suspect, the witnesses and experts in order to establish that the suspect is guilty.

Preliminary investigation

Once a crime has come to the attention of the police, a preliminary investigation is initiated.

The object is to find out who can be suspected of the crime and whether or not there is sufficient evidence to initiate an action. The prosecutor leads the preliminary investigation from the point when a certain individual can be reasonably suspected of having committed the offence. In the case of less serious offences, the police conduct the preliminary investigations from beginning to end.

As the person in charge of leading the investigation, the prosecutor is responsible for ensuring that the crime is investigated in the best way possible. The investigations are conducted by the police on the instructions of the prosecutor.

The prosecutor follows the investigations on a continuous basis and constantly determines which investigation measures and decisions are necessary. If the investigation concerns a serious and complicated crime, the prosecutor will often take part directly in the investigation in connection, for instance, with reconstructions of the crime or with important interrogations.

Precisely how a preliminary investigation is conducted in detail depends, of course, on the type of crime being investigated. Following a crime of violence, the police may conduct a crime scene investigation and question victims, witnesses and suspects.

The leader of the preliminary investigation may decide to introduce coercive measures such as cordoning off the crime scene, searching premises or confiscating evidence.

Technical evidence

It is often the case that the National Swedish Laboratory of Forensic Science (SKL) or the National Board of Forensic Medicine (RMV) are consulted in order to judge technical, chemical or medicinal questions that are of importance to the investigation. SKL’s analyses of firearms, narcotics and DNA traces are important features of criminal investigation work, and may sometimes be decisive for the results of the preliminary investigations. Each year the RMV analyses a large number of blood samples in order to investigate the influence of drugs in connection with a suspected narcotics offence or drunken driving. When investigating a crime of violence, the RMV’s forensic report may provide the answer to what kind of violence may have given rise to the victim’s injuries.

Once the preliminary investigation has been concluded, the prosecutor judges whether or not there is sufficient evidence to bring a court case against the suspect.

The length of time it takes to complete a preliminary investigation depends to a large extent on what it concerns – a preliminary investigation into a case of drunken driving can often be completed over the course of half a day, whereas it may take several years to investigate a serious financial crime.

Police or prosecutor

If you have been the victim of or were a witness to an offence, it is possible to report it to the police. Once the police have received the report, either the police or the prosecutor decides on whether or not to initiate preliminary investigations.

The police often lead the preliminary investigation during the surveillance stage when attempts are made to determine who can be suspected of the offence in question. Once the police have reached the stage at which someone can be reasonably suspected of having committed the offence, a prosecutor takes over the preliminary investigation work. In the case of less serious crimes, the police continue to lead the preliminary investigation. Such offences include, for example, shoplifting, traffic infringements and theft.

Investigation led by the prosecutor

The prosecutor leads the preliminary investigation:

• when the suspect is being deprived of his/her liberty

• when violence or a threat within the family or against a close relative can be suspected

• when the suspect is aged between 15and 17

• when the victim is less than 18 years old, or

• when it is a question of a crime of a serious or complicated nature

The prosecutor leads the preliminary investigation in a juvenile case owing to the special regulations that apply for young people. He or she conducts the criminal investigations when it is a case of serious crime, for example murder or an offence against a close relative. The prosecutor is always in charge of the preliminary investigation when a suspect has been deprived of his/her liberty, or in other words has been arrested or detained. If the arrest or detention is reversed and the suspect is released, the police will take over responsibility for leading the preliminary investigation.

Final serving

Once a preliminary investigation has been completed, the person who is suspected of having committed the offence is informed. This is referred to as final serving.

The suspect is entitled to examine all the investigation material and to request the police to carry out further investigations, for instance question more witnesses.

The person responsible for directing the preliminary investigation will then decide whether or not this should be done. In the event of lack of agreement, the district court may settle the matter.

Coercive measures

During the course of a preliminary investigation, the prosecutor may decide to apply various forms of coercive measures. Common coercive measures are for the police to conduct a search of premises or for the suspect to be arrested (deprived of liberty).

Searching a suspect’s premises could be important during a preliminary investigation either to look for a suspect who is wanted or in order to search for evidence. One example could be for the prosecutor to decide on the searching of an apartment in which drugs are being sold.

When the police apprehend a suspect for an offence, it is reported to the prosecutor and the police then question the suspect. After this, the prosecutor decides whether the suspect is to be arrested, i.e. deprived of his/her liberty, or released.

Arrest and detention

If the suspect is arrested, the prosecutor has three days in which to contact the court to request that the suspect be remanded in custody. Otherwise, the suspect has to be released.

A decision on arrest and detention normally requires that the subject is suspected, with probable cause, of an offence with at least one year’s imprisonment on the range of punishment. The prosecutor will decide to make an arrest if there is a risk of the suspect disappearing, continuing with his/her criminal activities or complicating investigations by, for example, removing evidence.

If there is a risk of the suspect complicating the investigations by contacting victims or witnesses, it is possible for the prosecutor to decide to restrict the suspect’s contacts with his/her surroundings while he/she is under arrest.

Decision to prosecute

Once the preliminary investigations have been completed, it is time for the prosecutor to decide whether or not to prosecute.

If the prosecutor, on objective grounds, judges that there is sufficient evidence to establish that the suspect has committed an offence, he/she is obliged to prosecute. A number of considerations must be taken into account before this decision is made.

If a prosecution is initiated, it is the task of the prosecutor to prove to the court that a crime has been committed.

No prosecution

If there is insufficient evidence to prove that an offence has been committed, the suspect cannot be prosecuted. It could, for example, be because the suspect denies committing the offence or that there are no witnesses or forensic evidence linking the suspect to the crime. Sometimes it becomes apparent during the course of the preliminary investigation that it is not possible to prove that a crime has been committed. Under these circumstances the prosecutor decides to discontinue the preliminary investigation.

A decision like this has the same significance as a decision to drop the charges against a suspect.

In the case of both decisions it means that the preliminary investigations can be resumed if new information is received concerning the crime.

The victim of the crime, the injured party, is always informed of the decision reached by the prosecutor.

Duty to prosecute

In the case of most crimes, the prosecutor has what is known as an absolute duty to prosecute. This means that the prosecutor is obliged to initiate a prosecution if he or she considers there to be sufficient evidence to prove that a crime has been committed and that a certain person has committed it.

This in turn means that not even the victim of the offence can decide what is to happen in connection with the investigations. In other words, there is nothing on the lines of “withdrawing the charges”. The prosecutor must make sure that the crime is investigated, irrespective of the feelings or wishes of those involved.

The reason for this is that society has an interest in ensuring that the perpetrators of the crime are also tried for it. Exceptions are made for certain offences where it may be felt that the interests of the general public in instigating legal proceedings are not strong enough. Examples of such offences are defamation, breach of domiciliary peace and crimes of unlawful appropriation, or stealing, within the family (i.e. theft etc.).

Summary punishment

A preliminary investigation does not always lead to a prosecution and trial, even though the prosecutor may feel that there is sufficient evidence to prove that the crime has been committed. If the suspect admits that he/she has committed the offence and it is clear what the punishment should be, the prosecutor can pronounce a so-called order of summary punishment.

An order of summary punishment has the same effect as a judgement and is recorded in the Criminal Records Registry. The difference is that the prosecutor cannot bring charges, which means in turn that there will be no trial.

In the case of summary punishment, a form is sent to the suspect on which he/she admits to the offence and accepts the punishment. This is voluntary and the suspect may choose to allow the prosecutor to bring charges and have the case tried in a court of law instead.

Summary punishment is possible in the case of an offence for which the punishment is restricted to a fine and/or conditional sentence. Examples of such offences are theft, shoplifting and traffic infringements.

Waiver of prosecution

The prosecutor may decide to waive prosecution, which means there will no prosecution, trial or punishment. On the other hand, the crime is recorded in the Criminal Records Registry, which could have consequences if the suspect were to commit a new crime.

In order to be able to grant a waiver of prosecution, it must be evident that a crime has been committed, and often because the suspect has made a confession. A waiver of prosecution can, for example, be granted if a person has recently received sentence for another offence and the crime in question would not result in the punishment being increased.

An example of this is when a person is sentenced to a long period of imprisonment for grand theft and it transpires that he/she was also guilty of shoplifting immediately before being found guilty of theft. Since the period of imprisonment would in all probability not have been longer if charges had also been brought against the suspect for shoplifting, the prosecutor may grant a waiver of prosecution.

Waiver of prosecution is also common in the case of young people under the age of 18. If the person in question is a first offender and it is a question of a minor offence, the idea is that he or she should be given another chance.

A basic precondition for granting a waiver of punishment is that it does not conflict with any important private or public interest.

Retrial

It is possible to request a retrial of a prosecutor’s ruling concerning, for example, a discontinued preliminary investigation or a decision not to bring charges. Requests for retrials are made by one of the Prosecution Authority’s prosecution development centres.

If a request for a retrial is received by a public prosecution office, first of all the prosecutor who made the ruling shall decide whether or not any new circumstances have come to light in the matter.

If new circumstances are cited, the prosecutor reconsiders his/her decision. If this reconsideration fails to result in any change to the original ruling, the matter is referred to the prosecution development centre. The same applies if there are no new circumstances to be considered in the case.

At the prosecution development centre, the case will be reviewed by the Director of Public Prosecution, who will then make a decision on, for instance, the resumption of a discontinued investigation or that certain investigation measures should be taken. The case is then referred back to the original public prosecution office, but to a different prosecutor.

Decisions made by a prosecution development centre can also be reviewed, and the matter will in this case be handled by the Office of the Prosecutor-General.

Few rulings are changed

During 2008, over 2 000 rulings by prosecutors were retried at the four prosecution development centres. This is less than 1 per cent of all the prosecutor rulings that were made during the course of the year. Prosecutor rulings were revised in 220 cases (approximately 11 per cent of the retrials conducted and some 0.04 per cent of all prosecutor rulings).

Legal proceedings

An important part of the prosecutor’s work is preparation and representation in court. Most prosecutors spend at least one or two days a week in court.

Through the decision to prosecute and the description of the offence that the prosecutor gives, he/she sets the framework for the criminal action.

During the course of the trial, the prosecutor is a party in the action. The prosecutor asserts during the trial that a certain person has committed a certain offence, after which the court judges whether or not this is in fact the case.

The task of the prosecutor during the trial is to prove that the offence has been committed. If the suspect denies committing the offence, the prosecutor has to present so much evidence that it is deemed proven without reasonable doubt that the assertions are in fact true. The prosecutor must, however, be objective, and shall also present any evidence that is in the suspect’s favour.

If any new information is presented during the course of the trial that changes the case, the prosecutor may need to reconsider the question of prosecution. In exceptional cases the charges may be dropped during the course of an ongoing trial.

The prosecutor plays a very active role in court.

Factual account and questioning

The prosecutor commences the proceedings by giving an account of the offence the suspect is accused of having committed. Once the suspect has admitted or denied committing the offence, the prosecutor gives a factual account of the crime and thereby sets the framework for the proceedings.

The factual account is based on the preliminary investigation and the prosecution, and involves the prosecutor describing in greater detail what the suspect is accused of having done.

This is followed by the giving of evidence (including forensic and written evidence) and any witnesses who are due to appear during the main proceedings. In more complex cases, the prosecutor may use technical aids such as PowerPoint presentations in order to make the case clearer.

After the factual account, the prosecutor conducts the examination. If there is an injured party or victim, he/she gives an account of what has happened and responds to questions. The suspect’s defence counsel and the court are given the opportunity to question the victim.

After this, the suspect is questioned by the prosecutor, defence counsel and the court. Any witnesses are called, sworn in and questioned.

Once all the evidence has been presented and the questioning has been completed, the court reviews the suspect’s personal particulars (biographical data). This gives the court a better basis on which to judge which punishment the suspect should be given if he or she is found guilty.

If the victim wishes to meet the prosecutor before the trial, he or she should contact the public prosecution office. It is normally always possible to arrange a brief meeting before the trial commences.

Closing speech and ultimate order of the court

The prosecutor concludes by holding a so-called closing speech. This is a summary of the prosecutor’s opinion of the evidence situation and includes a demand for sanction, or in other words the prosecutor’s proposal as to what sentence the suspect should be given. It is then the task of the court to impose this sentence.

The various laws contain ranges of punishment for different offences. The sanctions are determined within the framework of these punishment ranges. In the case of assault and battery, for example, the range is imprisonment for 1-10 years. The criteria that determine where the culprit is placed on the scale are various factors and circumstances, for example the level of injury sustained by the victim(s) or the way in which the attack was carried out. The prosecutor decides how high the level of punishment should be.

After the closing speech, the defence counsel is given the chance to make a final statement. Then the proceedings are concluded and where necessary the court passes sentence. Sometimes this takes only a short time, for example if the defendant is remanded in custody or where juveniles are involved in the case. In such cases, sentence can be passed immediately after the court proceedings.

If it is not possible to decide on the sentence immediately after the proceedings, notice will be given by post, normally within 1-2 weeks.

Sanctions and appeals

The sanctions to which a suspect may be sentenced include fines, conditional sentence, probation, imprisonment, care, foot-cuffs and community service. Different punishments may be combined.

If the prosecutor is dissatisfied with the sentence passed by a district court, he or she may appeal against it to the court of appeal, which is a higher instance. The suspect, and in some cases the victim, may also appeal against the court ruling. In the new appeal-court trial, the victim and the suspect must sometimes appear in court, despite the fact that they have already given evidence in the district court. Otherwise, their testimony from the district court is read aloud in the court of appeal.

Sometimes a so-called leave to appeal is required in the court of appeal.

An appeal may also be made to the Supreme Court against the ruling of the court of appeal. In the Supreme Court, only prosecutors specially appointed by the Prosecutor-General are allowed to appear in court. In order to have a case tried in the Supreme Court, it must be a so-called precedent, or in other words the ruling of the Supreme Court may be of importance to how courts of law pass judgement in similar cases.

Objectivity demand

The prosecutor is obliged to be objective. This means that the prosecutor must remain completely neutral in his/her assessment of what has happened and whether or not it can be proven in court.

The demand for objectivity means that the prosecutor is also responsible for investigating those factors that are to the benefit of the suspect.

If a person claims to have been the victim of a crime, the prosecutor must, for example, check the credibility of the account. If there were any witnesses present at the scene of the crime, it is important that as many of them as possible were questioned so that as complete a picture as possible is given of what happened.

Forensic evidence must, of course, be gathered and investigated in a correct and secure manner.

The prosecutor must also be objective when he or she initiates a prosecution. During the course of the trial it is admittedly the prosecutor’s task to prove that a crime has been committed, but the prosecutor is obliged to give due consideration to anything that could changes the situation with respect to evidence.