måndag, augusti 27, 2012

Sequencing and the discretion of the Government in Extradition cases

In my previous post I described how the Swedish extradition procedure works and its sequence. I explained that prior to the evaluation and decision of the Government the law provides that 1) the Prosecutor-General shall deliver a statement of opinion on the matter and 2) the Supreme Court shall rule on the matter. I wrote that the Government is the final body to approve an extradition request and it may deny a request even if it has been approved by the Supreme Court, but I did not go into the question of the discretion of the Government when there is an extradition agreement. Glenn Greenwald cited parts of my post on the Guardian website on this matter.

The problem is that Greenwald earlier and later in the same text argues for a sequence that would put the Government before the Supreme Court. In essence he is arguing that the Government should have the first and the last say with the Supreme Court in the middle. That would make the Supreme Court redundant which is contrary to the sequence that is provided for in the Extradition Act which I have tried to describe. It may also violate the principle of separation of powers. To be more specific, Greenwald writes in his debate with David Allen Green the following.

One of the "myths" Green purported to debunk was that "Sweden should guarantee that there be no extradition to USA." Assange's lawyers, along with Ecuadorean officials, have repeatedly told Sweden and Britain that Assange would immediately travel to Stockholm to face these allegations if some type of satisfactory assurance against extradition to the US could be given. This is the paramount issue because it shows that it is not Assange and Ecuadorean officials – but rather the Swedish and British governments – who are preventing the sex assault allegations from being fairly and legally resolved as they should be.  
[...] 
Sweden, Ecuador and Assange's lawyers could negotiate a resolution that provides Assange with meaningful protections against his fear of extradition to the US while following standard procedure on extraditions. Swedish authorities could, for instance, publicly state that they view espionage charges for the "crime" of reporting on government secrets to be a "political crime" not subject to extradition, but still reserve the right to formally decide upon any extradition request if and when they receive one.
This means that the Government (who represents Sweden and is asked by Assange and Ecuador for guarantees/assurances) must interpret whether reporting government secrets is espionage and a political crime and as such a non-extraditable offence. Section 6 of the Swedish Extradition Act provides that "[e]xtradition may not be granted for a political offence." Section 18 of the same act provides that "The Supreme Court shall decide whether extradition may be lawfully granted in accordance with Sections 1 to 10 of this Act." It is also obvious from the case law that it is for the Supreme Court to decide whether an act is a political offence and whether this blocks extradition. By the way, espionage is considered to be a political crime according to well-settled practice (see part II, pp. 545-548 and 928 in Swedish Government Official Reports SOU 2011:71). The purpose of the sequence provided for in the Extradition Act is that it is for the Prosecutor-General and the Supreme Court to assess the merits of the case before the Government, not the reversed. Or is Greenwald arguing that the Swedish Supreme Court should give an advisory opinion in advance of a non-existing request? There is no legal basis for such advisory opinions. The reversed sequence of processing a (non-existing) extradition request that Assange, Ecuador and Greenwald is asking for would be in conflict with the Extradition Act and possibly even with the principle of separation of powers enshrined in the Swedish constitution. My reasoning is similar to professor Ove Bring who has been interviewed by Dagens Nyheter. Here is an extract.
Minister of Foreign Affairs Patino claimed that they [Ecuador] have tried to get guarantees from Sweden that Assange would not be extradited in case of a request from the US. According to Bring it would be completely unreasonable to give such guarantees.
- Who could give such guarantees? The Supreme Court can not predict its own decision. If such a request is asked for it must be processed pursuant to the established manner.
–Subsequently the Government may deny extradition even if the Supreme Court has said yes but the Government can not issue any guarantess at the current stage. That would mean that the Government bulldozes the judicial system and says that it is irrelevant. It does not work that way in a democracy (my translation).
I could stop at this point but I would like to add an additional reason why the Government can not grant an assurance for non-extradiction to the US. Pål Wrange has raised an important caveat in his blog, namely
even if the Government has leeway under national law, it is bound by international law. Both the Swedish and the UK Governments have extradition agreements with the US, and these agreements provide that extradition shall take place, if the legal requirements are met. Hence, the Government could not provide a guarantee, without potentially violating an international obligation.
This means that the discretion of the Government to deviate from the ruling of the Supreme Court is limited if an extradition treaty exists. Pål Wrange raised this issue several days ago with me and I explained the caveat to various people, for example last Thursday in this twitter exchange with professor Nick Tholhurst. Several people have on Twitter argued that this is only mine and Wrange's opinion, they claim that the Government has full discretion. Our conclusion finds support in part II p. 450 of the Swedish Government Official Reports SOU 2011:71, below I have translated the relevant section (please note the heading of section 10.2 - obligation to extradite).
10.2 Obligation to extradite
10.2.1 Present law and assumptions
The starting point in section 1 of the Extradiction Act is that extradition pursuant to the law may be granted. With the word "may" follows that, as mentioned earlier, a free and discretionary power for the Government. This means that even if the legal requirements are met the Government may under the current legal scheme deny extradition. The Government may however by the accession to treaties and agreements binding under international law in an actual case be under an obligation to extradite. The possibilities of the State to deny extradiction with reference to State Sovereignty or ordre public may place the State interest before extradition and give some discretion and thus give the Government freedom.
To summarize, if there is an extradition treaty the Government is bound by an international obligation to extradite and it is only for legally sound reasons that it may refuse. An extradition treaty limits in a considerable way the discretion of the Government to deviate from the ruling of the Supreme Court. Without an actual request it is difficult to legally asses the exact discretion and whether the Government can exercise such discretion.

Some may ask, why is this not in the section on the Government's website where there is an English summary of the Swedish legislation? It is impossible to give answers to all actual and future, hypothetical cases in a summary, much less if the author of the summary is the Government.

Finally, many have referred to me as a professor. My correct academic title is juris doctor (equal to Ph.D.) and my position at the university is lektor (similar to lecturer), read more here on academic titels in Sweden.

17 kommentarer:

Free Wilhelm sa...

So the Swedish government can not even say that their political intention is to not extradite Assange after all the judicial procedures are completed because that might hurt the feelings of the Swedish high court judges? Seriously?

Allan D sa...

Even were it possible for the Swedish Government to give a guarantee that Assange would not be extradited in advance of any extradition request by the US authorities and in advance of any legal case regarding the sexual misconduct allegations his supporters have yet to answer the question as to whether this guarantee would only apply in connection with the Wikileaks revelations or apply in all foreseeable circumstances and for all foreseeable time. Clearly it would be impossible for any government to offer a guarantee in the latter case without, in effect, granting him political asylum.

Giles Bradshaw sa...

However it is perfectly possible that the Swedish court rules that the extradition may take place but the extradition treaty means that it does not have to. In such a case the Government would be legally entitled to choose whether to extradite or not.

The question is whether the Supreme Court rules on the treaty or on Swedish law.

Anonym sa...

"The problem is that Greenwald earlier and later in the same text argues for a sequence that would put the Government before the Supreme Court."

Not necessarily. Assurances could be offered in any number of ways that don't upset the proper sequence. A statement of intent is not the same as a ruling.

Not even the Government itself rules out the possibility of such assurances. They merely state that Swedish legislation "does not foresee the possibility" of issuing such guarantees. Here is the full quote from their statement for the OAS Meeting of Foreign Ministers (my emphasis):

"Sweden has an independent judiciary and, if the issue were to arise, any request for extradition would be handled in accordance with Swedish laws. Swedish legislation does not foresee the possibility of issuing guarantees that extradition will not take place.

Let me take this opportunity to clarify a few relevant points regarding Swedish legislation. Swedish law, the European Convention on Human Rights and Sweden's extradition agreement with the United States all state that Sweden is not allowed to extradite a person at risk of capital punishment. The offences that the person is accused of must also be punishable under Swedish law. The Extradition Act also includes grounds for refusal of extradition, such as political or military offences and situations in which the person who is extradited is at risk of persecution. If the person sought does not consent to the extradition, the request for extradition is examined by Sweden's Supreme Court before a final decision on extradition is made."

This seems to give enough leeway for the Government to, at the very least, enter into negotiations in search of a solution. So far they have refused.

Nicholas sa...

Thanks for this detailed analysis Mark.

Would it be fair to say then that the Swedish government could issue a statement along the lines of: "The government has discretion on any Supreme Court ruling on extradition but it should be remembered that it is also bound by international extradition agreements that may take precedent."?

Sex Health Nurse sa...

Anoym

you haven't read it properly. If the courts decide it is a political or military crime then it will be blocked by the courts - this is not an executive function.

However yes in domestic law if gets to executive they have the right to say no - this only applies if there is no extradition treaty as if there is a treaty international law will not allow the Swedish executive to say no depending on how the treaty is written. In the case of the US/Swedish treaty there is no room for the executive to say no

Anonym sa...

Hello, I am not a lawyer but I am interested in how the law works and this is fascinating. Thank you!

One thing that occurs to me is that if the Swedish government did what Greenwald wanted, wouldn't they potentially be helping the mysterious US lawyers who want to extradite him? If the Swedish government makes a formal statement that it will not extradite Assange based on espionage or any other political crime, and I was in charge of the US lawyers team, I'd say, "Right lads, no more time spent on that espionage charge. We've got to get him on something else - let's try violating the terms and conditions of his Yahoo email account or downloading the final season of The Wire. Everyone on that!"

Obviously it's the US lawyers' job to try and anticipate what Assange's defence would do and have plenty of back-up plans in place. But it does seem terribly helpful to say, "Hey, Plan A isn't going to work. Go straight to Plan B!"

Earnest Kookaburra sa...

So if the Swedish executive government *did* provide a blanket guarantee to Assange not to extradite him to the US, which was contrary to its treaty obligations to the US, in which forum would the US enforce the obligation?
Or would it simply lead to termination of the treaty and damage to diplomatic relations between Sweden and US (an admittedly serious consequence for the Swedish state to contemplate)?

Mark Klamberg sa...

Giles,
I have a preliminary view on the matter but I need to check it. Need to work on other stuff for a couple of days and will get back to you after that.

Anonym sa...


In a previous exchange in this blog somebody asked Mark Klamberg about the Agiza & al-Zery affair. I've been reading up on that and it's not pretty. Revealingly Mark Klamberg's reply boils down to the classic "Hey, shit happens, but Britain's doesn't smell any better". Fair enough, but It's not hard to see how this kind of expert legal analysis doesn't help put Mr Assange's mind at rest. Don't get me wrong, I'm not trying to have a go at Sweden. I'm sure it's a very advanced society from which other countries, including my own, have a great deal to learn. But, if anything, the Agiza & al-Zery case shows that, when you-know-who wants to get a little job done, they can count on the Swedish authorities not to stand in the way. Of course that means that human rights and international commitments must and, indeed, will fall by the wayside. So much for the usual pompous posturing and bloated rhetoric about due process and the rule of law, on which the average European government lecture their former colonies. What is more, the fact that even after the whole stinking thing was exposed and earned Sweden a stern rebuke from the U.N. no one has been punished, speaks volumes about the prevailing impunity among our ruling elites when engaged in assisting the Right Cause.

Mark Klamberg contends that extradition to the U.S. in Mr Assange's case is extremely unlikely and his analysis, on the face of it, seems sound and reasonable enough. Problem is "Sweden is not perfect" as he put it and as the Swedish record of unlawful cooperation with the only superpower eminently shows, yet his contention is predicated on the assumption that, were the U.S. to request his extradition, the Swedish establishment would regain their lost perfection for the occasion. It doesn't take a lot of imagination to figure out why Mr Assange would rather not take the risk of being accorded the Bradley Manning treatment.

Mark Klamberg is right to point out that Britain's long history of kowtowing to the bullies in Washington is by no means more commendable than Sweden's. I have no idea what prompted Mr Assange to settle in the U.K. after leaving Sweden, but I'm pretty sure that by now he must have reached the conclusion that it wasn't a very wise move, especially in view of the unprecedented threats to the Ecuadorian Embassy in London. Interestingly enough, this argument lends considerable credence to Ecuador's decision to grant Mr Assange asylum, after ascertaining that neither Britain nor Sweden showed the slightest disposition to address Mr Assange's legitimate concerns.

To summarize, a formula must be found that would make it possible for the allegations against Mr Assange to be properly dealt with, while offering unambiguous assurances that there is NO chance whatsoever that he will be extradited to the U.S. for his role in Wikileaks. After which, it would be wise for him to take up residence in a country like Ecuador, where the government has the political will to say no to the transgressions of the one state that places itself above and beyond international law. Unfortunately there ain't such a country in Europe at present.

Mark Klamberg sa...

Giles,
I have considered your question, it is an interesting one.

The Supreme Court rules on Swedish law. This includes the European Convention on Human rights which is incorporated in Swedish law by Statute. It also rules at least on parts of the US-Swedish Extradition Treaties because there are references from the Swedish Extradition Act to potential extradition treaties in sections 6(3), 9(3) and 10(3). Some parts of the Swedish Extradition Act offers similar to protection as the treaty, for example no extradition for political crimes. In other regards the Swedish Extradition Act appears to offer a stronger protection, see for example section 7 which denies extradition in cases of persecution based on political views or otherwise on account of political circumstances which is directed against a person's life or liberty or is otherwise of a harsh nature.

The Government has to consider Swedish law, but not matters of law that is the responsibility for the Supreme Court to determine, and international law.

Mark Klamberg sa...

To clarify, treaty law may become a part of Swedish law either through 1) incorporation by reference to parts of or an entire treaty, 2) transformation into statute law of parts of or an entire treaty or 3) presumtion of harmony between treaty and statute law by the Parliament or a court.

Giles Bradshaw sa...

Thanks for that Mark. Therefore insofar as the treaty is not incoperated into Swedish law the decision is the governments on how it should comply with it. However under international law it may not have much or any discretion.

IMO then Greenwald may well be right that the final decision is the executives not the courts however you are right that they could not possdibly make a guarrantee on what that decision would be.

It's perfectly possible to make decisions without there being discretion. It just means that you can make the wrong decision. Much as a criminal decides to break the law.

Fernando Oyarzabal sa...

Democracies "R" Us

This is what Mark Klamberg wrote in his blog when someone brought up the case of the illegal repatriation of Ahmed Agiza and Muhammad al-Zery:

"Even democratic, rule-of-law states with a good human rights record may commit mistakes. The difference compared with authoritarian states is that democratic, rule-of-law states takes action to repair the mistake and prevent it from happening again. That is what Sweden has done in relation to the case with the two Egyptians."

So we learn that we live in a dualistic world comprised of two different kinds of states: democratic vs authoritarian. Well, I’d like to see the scientific evidence for that. Of course I’m not saying this worldview is entirely inaccurate, far from it. But, frankly, having an international law lecturer expressing such simplistic views is rather disappointing.

Still, what caught my attention when I first read this paragraph was the use of the term "mistake". Naturally, if you go along with the Good vs Evil mindset, it follows that in democratic, rule-of-law states such things as the Agiza and al-Zery affair do not occur, but when they do occur, they are to be labeled mistakes. However, if we bother to go over the facts, we see that, to put it in a nutshell, what happened is that a U.S.-backed request to hand over two Egyptian asylum seekers landed on a Swedish ministerial desk and virtually within hours both men were chained on a plane bound for Egypt, where according to strong allegations they were subjected to torture. I won’t describe the way in which they were handled by American and Egyptian agents, on Swedish soil and under the noses of Swedish officers, but they are truly nauseating.

I’d like to ask Mr Klamberg how any of this is a mistake. Is he suggesting that the officials who dealt with the request don’t know the first thing about the legal procedure to be followed in such cases, which, as has been established, they flagrantly violated, What about the UN Convention Against Torture to which Sweden is a signatory? Was the request granted by accident? Was it all a tragic misunderstanding? Seriously?

Then Mr Klamberg goes on to make the extraordinary claim that action has been taken “to repair the mistake and prevent it from happening again.” Is that really the case?

Fernando Oyarzabal sa...

(continued)

Now, picture someone inadvertently knocking over and breaking a vase at a friend’s home, and subsequently apologizing and paying for the damage. That’s somebody making a mistake and repairing it. But the fact that this is exactly how the Swedish authorities have approached the Agiza and al-Zery case does not turn it into a mistake, which is precisely why doling out some cash cannot be deemed adequate reparation. We are talking here about very serious breaches with very serious consequences, and yet no proper criminal investigation has been undertaken and no one has been punished.

As for the actions taken to stop something like this from happening again, I’d very much like Mr Klamberg to explain what they consist of. The truth is that the mechanisms intended to prevent such “mistakes” were already in place. The problem is that those in charge of applying them chose not to, as soon as they got a note from on high. In other words, you might as well sign a dozen conventions and add new guarantees to the regulations concerning the repatriation procedure, but if you lack the will to honour the agreements and enforce your laws it will all turn out to be dead letter. The only effective measure in such cases is deterrence, i.e. exemplary punishment for transgressors. But, as we have seen, the whole thing was covered up and, when the scandal broke out several years later, no one payed for it. Something is rotten in the state of Sweden.

So, if it was not a mistake, what on earth went wrong? Did some Swedish official suddenly go mad? Oh, but though this be madness, yet there is method in't. In other words, blatant infractions might be the exception to the rule in a democratic, rule-of-law state like Sweden, nonetheless, there is an unwritten rule that accounts perfectly well for such exceptions, namely U.S. power. Would that official have made the same “mistake”, had the request been issued by the Ecuadorian government? To even pose the question is preposterous.

Despite all that Mr Klamberg cannot bring himself to mention the 800-pound gorilla in the room, the one with the star-spangled fur. I reckon he suffers from a condition called establishmentarianism, characterized by recurrent blind spots. Establishmentarians, for instance, believe that in democratic, rule-of-law states -and they invariably inhabit one of those- no wrongdoing goes unpunished, regardless of the status, power etc of the perpetrator. So, if say a bunch of bankers engage in all sort of serious fraud they are bound to end up behind bars. No amount of evidence can make them reconsider their beliefs; in fact they exhibit a prodigious ability to blank out facts that don’t fit in with said believes. A favourite strategy to suppress those facts is to call them mistakes, oddities, exceptions... As a result they can go on and on about Assange’s extradition without so much as acknowledging the long shadow cast by U.S. power.

Jesper Nielsen sa...

Thank you for the analysis. Very detailed, it helped me a lot breaking down the different aspects of this particular case.

Regards Santander

Leif Elinder sa...

Would it not be possible for the Swedish Government - in advance – to give a guarantee that Assange would not be extradited to a country, which openly violate international commitments as well as human rights?

See below:

http://www.thenation.com/article/169860/protecting-torturers-prosecuting-whistleblowers

http://jonathanturley.org/2011/09/06/nuremburg-revisited-and-revised-the-legitimation-of-torture-in-the-united-states/

http://anewworldsinbirth.wordpress.com/2011/05/17/the-quaint-and-obsolete-nuremberg-principles/

http://www.chomsky.info/interviews/20070803.htm

And also considering expressed threats –

http://www.swedenversusassange.com/Timing-EAW-INTERPOL-Red-Notice.html

Leif Elinder