By Professor Marcello Ferrada de Noli,
Editor-in-Chief.
Cover image: “Justitia.” Acrylic in canvas, Ferrada de Noli, 2003
Introduction
In a remarkable insight about the Swedish legal system, a noted columnist of Sweden’s largest newspaper Aftonbladet – Oisín Cantwell – criticizes today the Swedish institution of lay judges in his article [Swedish] “Shortcomings that embarrass Sweden internationally”.[1] Cantwell refers the case of a lay judge (called in Sweden nämndemän) which published in his page on Facebook a picture of an electric chair, adding the suggestion that this type of punishment was his verdict of choice for certain crimes of sexual nature. But in Sweden the death of convicted criminals by execution is forbidden. And that person was at the moment of the Facebook publication a Swedish lay-judge. Awkward as it sounds, in Sweden most part of the judges that pass verdict in court cases are appointed by political parties; only a minority are academic-schooled professional judges. To which extent this Swedish institution of Lay Judges would determine Julian Assange’s destiny, provided that the Swedish prosecutors decide – against all odds – to take the Assange case to court? It should be added that Oisín Cantwell is not against the Lay-judges system in Sweden; he only criticizes “its current form” – as he clarified on Twitter – and in the main, Cantwell only protests in his article against the fact that one new emerging parties (the far right-wing Sweden Democrats) has increased its share of lay-judges from estimated 300 to 700, after the national elections of 2014.
Lay judges in Sweden is an institution from the Middle ages. Such judges are supposed to represent the people, concretely, the people’s “sense” 
of justice in the courts. However, the first democratic paradox is that these judges ARE NOT elected by the people but instead designated separately by some political parties among their militants — which are in any case, all parties considered, only less than 2.9 percent of the population of Sweden! (see further below, item 4 on democracy issues). These judges intervene together with a professional judge in the assessments, judgment and verdict of cases in the Swedish courts. There is however an increasing consensus, summarized in an article in Svenska Dagbladet by Daniel Person, that “Lay judges have a tendency to judge according to their political affiliation“ [2].
Aftonbladet, another main Swedish newspaper, published 20 February 2012 an editorial-article by Eva Franchell containing remarkable revelations [3], also commented in DN:
– More than 200 lay judges have been the subject for criminal investigations in Sweden;
– Twenty-five convicted lay judges have continue act as judges in Swedish courts in the last years.
– Nearly half of the lay judges are retired individuals (over age 65). Have these lay-judge appointments been converted in a end-of-career chairs for politicians, by politicians?
I
During an interview – aimed to Arabic speaking audiences – conducted by the TV network RT that I had in Stockholm, the journalist opened with a straightforward question, approximately in this formulation:
– “What would happen to Julian Assange at arrival in Sweden if extradited from the UK?”
Noteworthy, a similar question was posed recently to me by KILKR- journalist Erik Sandberg (interview soon to be republish in The Indicter channel). [4]
The question by RT demanded an equally straight, but also quick answer for it was, as I understood, a live broadcasting. It was that kind of situations in which images come to the mind faster than reasoning. For which I answered rather with these spontaneous pictures:
I saw Julian Assange incommunicado in a tiny cell that is frequently visited or controlled – and for which I imagine he will be deprived of rest, of continuous sleep.
And I saw him answering questions posed originally in a language he does not understand. This led me to imagine further that he was in court. And this means – in his case – in a secret trial behind close doors. Assange would be defended by a lawyer to whom the Swedish regulations forbids that he would tell to the press or public about all the investigations details he may know. For that is privilege of the prosecutor.
I saw finally Julian Assange been judged by a team consisting of lay judges appointed by political parties (majority) professional judges (minority). And I though in the actual stances of the main political parties in Sweden with regard to WikiLeaks and its founder Julian Assange – made ‘public enemy number one’ by Swedish PM. [5] And I thought what possibilities of a fair trial Julian Assange would have – against the backdrop of earlier of trials of that kind. He could be judged been guilty even if no substantial evidence is presented against him.
May I add that I know what it feels to be under the mercy of politically appointed judges, or in incomunicado arresting system, trials behind close doors, or exposed to a guilty-verdict without the need of substantial evidence. All that my comrades and I have experienced under the fascist dictatorship of Pinochet.
II
Of course Sweden – with monarchy and all – is to be regarded as a full democracy; Pinochet regime was a full dictatorship. In fact, the only real similitude between those two governments is the under positioning towards USA strategic interests. But this is NOT a tiny detail.
We already know that a Grand Jury in the U.S. is preparing a case against the WikiLeaks founder. The US shall most certain seek the extradition of the Wikileaks founder. On which alleged grounds? Let me cite from my previous article “While U.S. admits “pending future prosecution” of Julian Assange, Sweden refuses to abide by U.N. ruling on his arbitrary detention“: [6]
The US government is pursuing a case against Julian Assange on charges of terrorism
Assange will be charged according to the US Patriotic Act that define specific computer crimes as terrorist attacks [5], as well as the CFAA (Computer Fraud and Abuse Act, 1-a). [6] We have to consider these facts against the backdrop of a series of statements by prominent U.S. politicians accusing, implying or equalizing WikiLeaks activities with anti-American “terrorism”. The very Vice President of the United States has unambiguously described Assange as “cyber-terrorist”. [7]
Already in December 2010 CNN informed that Swedish authorities knew that “a secret grand jury in Alexandria, Virginia, is meeting to consider criminal charges in the WikiLeaks case”. [8] Alexa O’Brien confirmed in 2014 the continuity of this case. [9]
Further, Kevin Gosztola reported in 2015 the on-going case against WikiLeaks and its founder Julian Assange. Among the facts reported: a) the Grand Jury in Virginia on WikiLeaks continues being empaneled; b) The US government had even sent warrants to Google for the transcription of documents and information on Julian Assange and members of the WikiLeaks staff for the purpose of a case dealing with violations of the Espionage Act, Computer Fraud and Abuse Act (CFAA) and a “conspiracy to commit offense or to defraud the United States”; an c) The US Department of Justice announced that there is an on-going FBI criminal case against WikiLeaks and that records should no be make public because it would harm “pending future prosecution“. [10]
NBC News reported that a legal panel has predicted that “Assange will be indicted”. They also reported that Attorney General Eric Holder said, “Charges may be brought under the Espionage Act of 1917 or other laws”. One of the panel members, Paul Rosenzweig (Heritage Foundation, and former Homeland Security official), affirmed that an U.S. indictment against Julian Assange is 80 per cent likely, and that “it’s a political necessity”. [11]
III
Lay judges. . .
Both in the Pinochet dictatorship and in the democratic Sweden lay judges are appointed politically. In Pinochet’s Chile the right-wing political force in power was represented by the Military Junta itself. The military have achieved government office by force of a putsh supported by all the right-wing political parties and implemented with participation of the CIA. Lay judges, which participated in courts eventually with professional judges or also law-school educated officers, were often military officers from the “ranks”.
First important aspect: in Sweden lay judges ARE used in criminal-law cases
According to the common notion, lay judges are used in some civil law [12]. This last “universal” notion has conveyed that the lay-judges issue has not being considered important in the international discussion over the Assange case.
Nevertheless, in Sweden lay judges are used in the judging of criminal-law cases. And, according to Swedish legislation, this is the offence-typification implied in the accusations against Julian Assange. We have in Sweden District courts, Court of Appeals, and the Supreme Court. Lay judges are used more extensively in the District courts.
Second important aspect: in Sweden lay judges are not assessors, they ARE JUDGING
The common understanding, or usual notion of “lay judge”, it refers to an individual assisting a judge in a trial, [12] meaning that these lay judges would have a purely “assessor” role. The Wikipedia article on the Judicial System of Sweden is not clear – or misgiving – regarding this issue. Although it firmly states that these judges are only “assesors”, and that they are not used in civil-law cases, the article omitted saying that Swedish lay judges are instead used in criminal cases, and that their role is to judge.
So, even if the role of lay judges in other countries is commonly the one of assessor in civil-law cases, in Sweden however that IS NOT the case.
In such Swedish District courts, there are up to three lay judges in the court cases. They participate in the judging with the same ‘judging prerogatives’ than the professional (career) judge/s. And this is the type of court that Julian Assange would be facing if prosecutors decide to take the case into court.
Third important aspect: Political affiliation DOES MATTER in the judging and verdict outcome
As I previously reminded, “lay judges have a tendency to judge according to their political affiliation“
There is a widespread error on that if a Swedish prosecutor do not have enough evidence will not present the case to court. From that assumption, long discussions have been conducted in international and Swedish forums examining the validity or presumably existence of “evidence material” from the part of the prosecutor’s side in the Assange case. These discussions aim to elucidate whether “there the prosecutor has enough material”, and trying to anticipate whether charges will be made or not, and thus the question of trial or not-trial. But the truth is, that ultimately, a prosecutor in Sweden has the privilege to present a case in court, regardless. Is the prosecutor’s side which would decide after own assessment whether the case “is worth” to be taken to court.
One consequence of this would be for Assange, that if this would happen – that is in under trial – he may be further subject of other (juridical) eventualities regarding prospective demands of extradition or “interrogations” by another country.
The equation “Low/absence of substantial evidence and political-minded judging”
Yet, the main concern in this scenario – the worst odds, according to precedent (see below the Beltrán case) – is if the absence of substantial evidence would lead that emphases are instead placed in circumstantial evidence, or “testimony evidence”. In this situation, what would be examined are subjective factors in relation with the case. In all this judgments the political factor is relevant to say the least, and also can be determinant. What other factors associated with the case? For instance:
In February 2011, referring to the Swedish case against Assange, Prime Minister Fredrik Reinfeldt declared publicly: [13]
“I can only regret that women’s rights and status weighs that light regarding these types of issues, in comparison with other type of theories put forward.”
[”– Jag kan bara beklaga att kvinnors rätt och ställning väger så lätt när det gäller den här typen av frågor jämfört med andra typer av teorier som förs fram”].
Prime Minister Reinfeldt again, a year later, the 25 of January 2012 made similar interferences in the legal case, appealing of national sentiment in the sense that i sthe prestige of Swedish legislation in theses regards what is at stake. I have previously analyzed these declarations of Prime Minister in “ Swedish government using media to interfere in the legal process against Julian Assange“:
The program leader, journalist Andres Holmberg, asked finally Sweden’s Prime Minister:
– “Is it a problem for you Fredrik Reinfeldt, or for Sweden, that this type of descriptions emerges about Sweden, in the international press: A judicial banana republic?”
The Prime Minister of Sweden:
– “It is very often a method one uses, to try discrediting a country or a judicial system when one stands prosecuted (anklagad, again!) of a crime in other country.”
– “We have naturally to stand up for we have a functioning legal state and also we take very seriously prosecutions that have to do with rape because there are also ingredients aiming to diminish how we have developed, and stand for, a good legislation in this case.” [14]
Political appointed judges, that “have a tendency to judge according political affiliation” are most likely to follow the line of Sweden’s Prime Minister, on that this case against Assange is also a case of the political prestige of Sweden internationally, a mater of demonstrating how modern legislation we have on these issues.
And this not to mention the Assange case as symbol for right-wing radical feminists, whose party comrades may be also in the composition of the lay-judges team.
IV
A precedent. The Beltrán case: In absence of hard evidence, judging guilty in the solely base of “finding the plaintiff’s story credible”
Lawyers Thomas Bodström and Claes Borgström (Bodström & Borgsträm Law Firm)
One of these cases was the sentence to prison against the Chilean political refugee Tito Beltran – also a worldwide celebrity as opera tenor – accused of rape on the basis of a Swedish woman’s declaration made nine years after the episode in reference. No evidence was needed. The lawyer of the woman-accuser who obtained the sentence was the social democratic politician and former minister of Justice Thomas Bodström, mentioned above. This politician is the partner of the law-firm Bodström & Borgström that nominally pursue the case against Julian Assange.
The verdict stated: “According to this court, we found the plaintiff’s story credible and that fully meets the requirements to form the basis for a conviction”. [15]
The lawyer defending the plaintiff was the social democratic politician and former minister of Justice Thomas Bodström. The “evidence” mentioned later in the verdict against Beltrán referred to declarations of two friends of the plaintiff which would “have heard” an account from the part of the plaintiff after the alleged happenings. Also in this case, it was not the plaintiff who have made a complaint to the police against Beltrán. It was another woman (Monica Dahlström-Lannes, known in Sweden as activist and campaigner concerning sexual-offence cases) who after her own private investigations and interviews on the case filed the complaint to the police – nine years after!
Dahlström-Lannes was a board-member of the same organization, ECPAC, in which the social democratic politician and former minister of Justice Thomas Bodström was also a board-member. However, Bodström denied in the court hearings that he knew Dahlström-Lannes.
V
Other democracy issues in the Swedish Lay Judges system
Lay judges in Sweden are an institution from the Middle ages. Such judges are supposed to represent the people, concretely, the people’s “sense” of justice in the courts. However, the first democratic paradox is that these judges ARE NOT elected by the people but instead designated separately by some political parties.
And in their turn, the political parties pickup the Lay Judges candidates from their party ranks. However, in spite of the population of Sweden being approximately nine millions (9 316 256), the total individuals affiliated to the Swedish political parties is only approximately a quart of a million (269 208).
This means that the population relevant for the “democratic” representation by these politically appointed lay judges is actual only less than the 2.9 percent of total Swedish population.
Since available figures for the political affiliations are from 2009, I have used in the statistical calculation the population figures of that same year. In fact, this difference is now increasing, as the population grows while individuals affiliated in political parties tends to diminish notably.
This in turn poses another “democratic” related problem, since such “elections” done in the Swedish political parties correspond in reality to a “selection”, a “co-optation” done by the top leading circles in such parties. in the best of cases this is done through “Proposition boards” (called some times Valberednings grupp), also at top-levels in the parties hierarchies. In concrete:
A direct election of Lay Judges by the Swedish voters simply does not take place. That these judges “represent the people” it is simply not true. What they do represent instead is the political parties that have nominated them.
Further, another problem such system has with “democracy”, is that only the political parties that have reached an arbitrarily stipulated statistical value which is decided by the ruling parties (nowadays the stipulated value is >4 percent of the voters). Important political parties such as The Pirate Party – which otherwise has representation in the European Parliament) has been deprived with such formula of forming part of the lay-judges selection club.
Another issue with regard to democracy, is that although these lay judges are supposed to represent the people at large in the Swedish courts, most of the lay judges are retired bureaucrats or else — of older age. In this sense they hardly wold represent the Swedish people, only a limited age cohort.
The above aspect is also significant for the final political equation at the courts, since people of older age tend to see issues – politics inclusive – in a different way that younger generations does.
What professional/career members of the Swedish Judiciary think on the Lay Judges system?
In a survey conducted by SvT among 675 career judges accepting to reply, only 28 percent had the opinion that the system of lay judges should be abolished. While 30 percent was negative to that lay judges are politically appointed. [16]
VI
Some other important related observations about the Swedish legal system in the context of the “case Assange”
- Sweden has a judiciary system in which judges participating in the courts are appointed by the political parties (there is not Jury-system in Sweden, neither exists in Sweden the institution of bail).
- Sweden allows secret, “close-doors” trials. Particularly with regard to sexual-offences trials in which case secret trials is the most common form to be used in the Swedish system of justice.
- The number of appeals in Sweden has been notably reduced after a law of 2008 (the so called EMR reform) devised to curve down the number of cases resulting on appealing at higher courts.
- In the Swedish case against Assange the police investigators conducted interrogations without video-recording, sound-tape recording or other form of transcription. This is an aggravating anomaly and which infringed clear standard proceedings as instructed by the Police Authority with regard to cases involved suspicions of rape.
- The interrogation of one of the nominal accusers was performed by a police officer friend of the other nominal accuser.
- The interrogation of Julian Assange could have very well have conducted in Sweden but the prosecutor chosen to issue an Interpol warrant what it made possible the fabrication of an extradition case.
- The law-firm defending the accusers is co-owned by a politician member of the very same political group within the Swedish Social democratic party, Mr. Thomas Bodström (former Minister of Justice) and in which the accuser AA was at the time of the accusation the political secretary.
- The actual lawyer appointed by the firm (the other co-owner of the law firm) is Mr. Claes Bogström, which, together with the prosecutor of the case Ms. Marianne Ny, and together with the former Minister of Justice and chairman of the Justice Committee of the Swedish Parliament Mr. Thomas Bodström participated in the study of the new legislation which radicalized the proceedings and penalties for sexual-offences in Sweden.
- Mr. Thomas Bodström was the main politician – apart of the former Prime Minister Göran Persson – signalled around the agreements with CIA on the rendition of political refugees in Sweden to be transported to torture elsewhere. For that he was called upon the Swedish Constitutional Committee. The Swedish political parties however, as well as the mainstream media, did never really condemn such behaviour.
References
[1] Oisín Cantwell, Bristerna skämmer ut Sverige internationellt, Aftonbladet, 29 March 2016
[2] SvD Opinion, 20 Feb 2012
[3] “Politikerna som struntar i lagen“. Aftonbladet, 20 Feb 2012
[4] It corresponds to an unpublished segment of the interview Professor Marcello Ferrada de Noli rebutting Amnesty Sweden pro-government stance in Assange case. The Indicter Channel, YouTube upload 18 March 201.
[5] DN http://www.dn.se/nyheter/varlden/reinfeldt-beklagade-negativ-bild-av-rattsvasendet
[7] Joe Biden interviewed in the program “NBC’s meet the Press”. “Assange a high-tech terrorist: Biden“. YouTube video uploaded by ABC NEWS (Australia), 19 December 2010.
[8] CNN, “Assange attorney: Secret grand jury meeting in Virginia on WikiLeaks”. London, 13 December 2010.
[9] Alexa O’Brien, “US investigation of WikiLeaks now entering 5th year. By Alexa O’Brien”. The Professors’ Blog, 25 February 2014.
[10] Kevin Gosztola, “Search Warrants Against WikiLeaks Staff: Justice Department, Google & US Media Silence Threaten Press Freedom”. ShadowProof.com/ 25 January 2015.
[11] NBC News, “U.S. v. WikiLeaks: espionage and the First Amendment”. 2013.
[12] “Lay Judge“. Wikipedia article
[13] http://sverigesradio.se/sida/artikel.aspx?programid=1637&artikel=4928323
[14]
[15] http://www.aftonbladet.se/nyheter/article11904361.ab
[16] “RÅ: Nämndemannasystem bör förändras”. SvD 24 Jan 2012 http://www.svd.se/nyheter/inrikes/ra-namndemannasystem-bor-forandras_6794667.svd