2011-02-08 Witness statement of Bjorn Hurtig – Summary

The Witness Statement of Bjorn Hurtig, Swedish counsel for the defense of Julian Assange – Summary

The original statement is available here, and the supporting documents are herehere, and here. In this document, Mr Hurtig describes the case against Mr Assange to the London defense team as one of the weakest he has ever seen in his entire fifteen year career. In this document London defense Mark Stephens asserts that the Swedish prosecutor sought not just to have Mr Assange imprisoned while under investigation, but also placed in solitary confinement. The key points of Mr Assange’s skeleton argument were summarizedhere.

Mr Hurtig states that the manner in which Ms Ny (the Swedish Prosecutor) has handled Mr Assange’s case is not in compliance with the concept of a fair trial.

Mr Assange will most certainly be brought to trial behind closed doors, initially and in the Court of Appeal. Mr Assange, who has endured an avalanche of bad publicity, will be heard with no witnesses to view the weaknesses of the case and thus no opportunity to clear his name. Prosecution witnesses will not be refuted by any new witnesses coming forward, because no one will hear their testimony.

The trial will be heard by a judge and three laypersons who are appointed by, and often members of, a political party.

The trial may be affected by media prejudice caused by the unfair conduct of police and prosecutors. Before the complainants were properly interviewed, and thus before an investigation ought to have begun, a prosecutor told the Expressen newspaper that Mr Assange was being investigated for rape, a serious breach of Swedish anonymity law. Despite this breach, the prosecutor has not been disciplined and the Justice Ombudsman has refused to accept a complaint made against her.

In Sweden, victims can have their lawyer paid by the state, even before charges are brought or confirmed. After the charges against Mr Assange were thrown out by a senior prosecutor, Claes Borgstrom, as lawyer for the complainants, appealed the decision. Ms Ny both upheld his appeal and decided to take over the case herself. Overturning the senior prosecutor’s decision and deciding to take over that decision herself is in contravention of a well known principle in Swedish law. The decision to overturn the senior prosecutors decision was taken with no hearing from Mr Assange, his legal counsel, or anyone representing the senior prosecutor, in breach of the rule that everyone is entitled to be heard in matters affecting their liberty or civil rights.

It is stated in the Prosecution Manual and is the received wisdom of prosecutors, that rape cases must be investigated quickly. Despite this, Ms Ny made absolutely no effort to contact or interview Mr Assange after she took over the case, and in fact refused to speak with him, from September 1 onward. On September 27, after Ms Ny stated that she had no objection to him leaving Sweden, Mr Assange left Sweden.

On September 27, Ms Ny testifies that she arrested Mr Assange in absentia. On September 30, Mr Hurtig spoke with the assistant prosecutor to arrange a time for Mr Assange to be interviewed and was told that Mr Assange did not risk being taken into custody.

Mr Hurtig states that he has been in fairly continuous communication with Ms Ny since September 30 and he has offered to answer questions by telephone, video link, skype, attendance at Scotland Yard, or the Swedish Embassy in London, and he has never been given a sensible reason for the rejection of these offers. On January 11, Ms Ny texted Mr Hurtig saying she could not interview Mr Assange in England because of “investigative technique requirements”. She has told the media that she is prevented from doing so by law. Mr Hurtig asserts that this is not true, there is no such law. Mr Hurtig states that these methods are specifically mandated by the Prosecutor Manual, the Manual on European Warrants, and the Manual on International Legal Assistance.

The assistant prosecutor told Mr. Hurtig that they only wanted Mr Assange to answer questions and if he did not say anything detrimental it was more than likely that the whole matter would be dropped.

Mr Hurtig has not been provided with all the evidence against Mr Assange including important exculpatory evidence. Goran Rudling provided a lengthy statement to the police investigator, including important information beneficial to Mr Assange’s case, which Mr Hurtig was not informed existed and was unaware of until Mr Rudling contacted the defense. The new interviews with the complainants have also been concealed from the defense. Other exculpatory evidence was shown to him briefly, but he was not allowed to make copies or show his client. This evidence includes text messages between the complainants in which they discuss receiving payment for making the complaint, contacting the tabloid Expressen, and refer to ‘revenge’.

The prosecutor refuses to provide any material in English. Mr Hurtig received a 98 page file containing vital evidence which had to be translated in London at Mr Assange’s expense.

Ms Ny told Mr Hurtig that he could reveal the contents of the remand warrant, but ethical guidelines prevented him from revealing what he knew of the contents of the text messages. He has since contacted the Swedish Bar Association who refuted this.

Mr Hurtig has been refused access to Mr Assange’s file on the grounds that it would prejudice her investigation at the same time that Ms Ny knew that the police had provided the file to the media. The media had access to information months before the defense.

The European Arrest Warrant contains the Swedish term for the entire investigation, not simply prosecution, as a reason for issuance. (There is another Swedish term which refers to prosecution.) Ms Ny has repeatedly stated that she only wants Mr assange for questioning and has not decided whether to prosecute. The warrant is only to be issued for the purposes of prosecution, not questioning.

There is no reasonable possibility of Ms Ny having gathered further incriminating evidence against Mr Assange since the last time he was questioned by the prosecutor’s office. They have, in fact, received evidence from Mr Rudling and two other witnesses that helped Mr Assange’s defense.

There is no allegation in the arrest warrant that Mr Assange did not reasonably believe that all conduct was consensual, which there would need to be for the alleged acts to be indictable under English law.

Mr Hurtig also stated a correction to Ms Ny’s title as it appears on the European Arrest Warrant. On the warrant she is styled as a Director of Public Prosecutions, a position held by another. Ms Ny is one of several Senior Prosecutors.

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