Julian Assange sought asylum from Ecuador rather than face extradition to Sweden. His reason for this appears to be fear regarding the possibility of onward extradition to the USA. This fear probably stems from the fact that, in 2010, the US Attorney General ( Eric H. Holder Jr. ) confirmed that the Justice Department was examining whether Mr. Assange could be charged with a crime. However, at the time, some American legal scholars suggested that there would be "steep legal and policy difficulties" - New York Times 1st December 2010 and also see Ann Woolner "Wikileaks founder lurks beyond reach of the US Law" and Charon QC 1st December 2010. Any such legal difficulties would fall to be tested in the courts of the USA.
Of course, Assange is now in the Ecuadorean Embassy in London having been granted diplomatic asylum by Ecuador but suppose that, at some future date, the UK is able to extradite him to Sweden. What would be the position should the USA then step in and ask Sweden to send him on?
1. It is crystal clear that Sweden could not extradite him if there was a possibility of the death penalty being applied. This is stated in section 12 of Sweden's Extradition for Criminal Offences Act 1957. Extradition in such cases would also be in breach of the European Convention on Human Rights to which both Sweden and the UK are parties.
2. Swedish extradition law prevents extradition for what are described as "military or political offences." (Of course, it is far from clear what, if anything, the USA might put forward should any request for extradition be sent to Sweden). Some caution is required here. Section 6 of the Swedish Extradition Act is concerned with political offences and states:
Extradition may not be granted for a political offence.
If the act also constitutes a non-political offence, extradition may be granted for that offence, provided, in the particular case, the act is predominantly of a non-political nature.
The first paragraph does not apply where rejection on this ground would be contrary to an international agreement applying between Sweden and the requesting state.
As to what is a political offence, a post on the Mark Klamberg blog is worth reading in full. Klamberg is a Lecturer in International Law at Stockholm University. He considers reasons why Assange could not be extradited from Sweden and states:
".. the Swedish extradition agreements with the US does not allow extradition when the offence is purely military or if the offence is a political offence. See article 5(4)-(5) of Convention on extradition between the United States of America and Sweden, 24 October 1961. See also the supplementary convention from 14 March 1983....... No definition is given in the Extradition Act of what [is] a political offence. In Swedish extradition law, as in many other countries' extradition laws, a distinction is made between absolute and relative political crimes. Absolute political crimes are those exclusively directed against the state... espionage is an absolute political crime according to the travaux préparatoires. One may add that in Swedish law, as opposed to English law, travaux préparatoires is a source of law." (Travaux préparatoires are materials such as documents prepared in the process of negotiating a treaty).
3. Consent of the U.K. is required for onward extradition. On this, see the Government Offices of Sweden website where the consent requirement is clearly stated. If Sweden were to make such a request to the UK then section 58 of the Extradition Act 2003 would apply. On this, I can do no better than refer the reader to the blog of Francis Fitzgibbon QC - "Julian the Asylum Seeker." Mr Fitzgibbon wrote:
"If he fears that the Swedish prosecutor is merely a cat’s paw for the US government, who will demand his extradition when he arrives in Sweden, he has to take account of Section 58 of our Extradition Act 2003: if the Swedes want to extradite him to the USA, they have to obtain the consent of the British Home Secretary first. That rule derives from Article 28 of the 2002 EU Council Framework Decision (2002/584/JHA), which binds the Swedish government. After the investigation and any criminal proceedings in Sweden end, that restriction also ends and the Swedes can extradite him without reference to the UK government. But neither Sweden and the UK will extradite anyone to a country where the accused is in peril of the death sentence if convicted of an offence, or where prison conditions are so bad as to breach his rights under Article 3 of the ECHR (‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’)."
4. Mr Fitzgibbon's point relating to prison conditions and Article 3 of the ECHR requires reading in conjunction with the case earlier this year of Babar Ahmed and others v United Kingdom ~ considered in the blogpost of 14th April. In the light of Babar Ahmed it is now difficult to see in what circumstances even the tough prison regimes in the USA (such as ADX Florence) might be seen as bad enough to prevent extradition on the basis of Article 3.
5. Swedish Extradition Law - (full reading essential) - sets out the extradition procedure applicable within Sweden. In relation to extradition from Sweden to a country outside the EU there is this statement:
"If the Supreme Court finds that there is any legal impediment to extradition, the Government is not allowed to approve the request. The Government can, however, refuse extradition even if the Supreme Court has not declared against extradition, as the law states that if certain conditions are fulfilled, a person "may" be extradited - not "shall" be extradited."
Naming the complainants:
An interesting post appears on the Head of Legal blog where Carl Gardner considers whether the English law on anonymity for complainants of rape or sexual assault should be tightened. The offences of which Assange is accused and in respect of which his surrender to Sweden is sought are alleged to have been committed in Stockholm against two women in August 2010. They include “sexual molestation” and, in one case, rape.
For the purposes of the Extradition Act 2003, Sweden is a Category 1 territory and the USA is Category 2.
Opinio Juris - also covered Mr Klamberg's article.