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.