A substantial portion of the documents on Julian Assange were destroyed by the Swedish Prosecution Authority, which investigated him for rape in a criminal investigation opened and closed three times between August 2010 and November 2019. The materials destroyed were correspondence between the Swedish Prosecution Authority (SPA) and the Crown Prosecution Service (CPS) which was providing the SPA with support on the case, since Assange was under investigation in Sweden but had been in London since 2010.
The correspondence between the SPA and CPS is absolutely crucial to understand and reconstruct what really happened in the Swedish rape investigation. That investigation was ultimately dropped once and for all without Assange ever being charged, but for almost a decade has deprived him of the empathy of public opinion. Especially the empathy of that segment of the public more sensitive to the WikiLeaks revelations on war crimes and torture, often the segment also more mindful of women’s rights.
The highly anomalous handling of the Swedish case by prosecutor Marianne Ny resulted in justice for no one, contributed to the devastation of Assange’s health, cost British taxpayers at least 13.2 million pounds to keep the Ecuadorian embassy under siege by Scotland Yard from 2012 to 2015, and resulted in the UN Working Group on Arbitrary Detention decision that Sweden and the United Kingdom had arbitrarily detained Assange since 2010, in the case of Sweden the first time the UN Group had ever made such a decision in the country’s history.
In September 2019, the then UN Special Rapporteur on Torture who had investigated the case, Nils Melzer, listed fifty perceived due process violations, including “Proactive manipulation of evidence”, in an official letter to the Swedish government.
Assange is currently incarcerated in Britain’s harshest prison, Belmarsh, in London, awaiting British justice’s decision on his appeal against extradition to the United States. If extradited, he risks 175 years in prison for obtaining and publishing classified U.S. documents which allowed revealing war crimes and grave violations of human rights. From Amnesty International to Reporters Without Borders, all the major human rights and press freedom organisations in the world have condemned his extradition and called for his liberation.
The fact that documents were destroyed by the Swedish Prosecution Authority has just surfaced thanks to our lengthy FOIA litigation, and comes almost six years after that very same FOIA litigation unearthed that key documents were destroyed by the Crown Prosecution Service. It is now clear that both of the authorities handling the Swedish case, the SPA and the CPS, destroyed a large part of their email exchanges. Why? What did those documents contain and on whose instructions were those materials destroyed? Now more than ever some sort of explanation is urgently needed, considering that the United States is currently acting through the Crown Prosecution Service itself in the extradition proceeding against Julian Assange.
Since 2015, we have been engaged in trench warfare in Sweden, Britain, the United States and Australia to access the full documentation on the case under FOIA, represented by seven lawyers.
This investigative work has allowed us to find the answer to one of the key questions around the Swedish case: why did Swedish prosecutor Marianne Ny, who reopened the rape case in September 2010 after Stockholm’s chief prosecutor, Eva Finné, had immediately dismissed it (because, in her judgement, the suspect’s conduct “disclosed no crime at all”) refuse to question Assange in London for six years?
Documents obtained in 2015 by the author of this article from the Swedish Prosecution Authority under FOIA revealed that it was the Crown Prosecution Service, specifically Mr. Paul Close, a lawyer with the CPS’s Special Crime Division – the division responsible for prosecuting high-profile cases – which advised the Swedish Prosecution Authority against the only legal strategy that could have brought the case to a rapid resolution, namely questioning Julian Assange in London, rather than insisting on extradition to Sweden simply to question him. In advising the Swedes not to question Assange in the United Kingdom, the Crown Prosecution Service helped create the legal paralysis trapping the WikiLeaks founder in Britain from 2010 onwards. After all options for fighting his transfer to Sweden had been exhausted and Assange took refuge in the Ecuadorian embassy, that legal paralysis was compounded by a diplomatic impasse. This quagmire left him in a legal limbo, under investigation for years, suspected of being a rapist but never either charged or cleared once and for all.
Why did the Crown Prosecution Service behave in this manner? Why did they write to Marianne Ny “Don’t you dare get cold feet!!” when, in 2012, the media reported that Ny might drop the case? In 2013, even the Swedish prosecutors began to question the dead end into which they had waded at the advice of the British authorities by insisting on extradition to Sweden. In October 2013, Marianne Ny considered dropping the extradition case. “This would affect not only us but you too in a significant way”, she wrote to the Crown Prosecution Service. It is unclear why dropping a Swedish extradition effort would affect the British. She also wrote: “I hope it didn’t ruin your weekend”. Again: why would a Swedish prosecutor dropping an extradition attempt for a sex case in Sweden ruin the weekend of Crown Prosecution Service’s authorities?
Keir Starmer, the Crown Prosecution Service and the troubling destruction of emails by the CPS
Some of these critical decisions and advice on the Julian Assange case were provided by the Crown Prosecution Service between 2010 and 2013, when it was headed by Keir Starmer, current leader of the Labour Party. What role, if any, did Starmer play in the case?
Digging into these facts, we discovered that the Crown Prosecution Service had deleted all data associated with Paul Close’s email account, which cannot be recovered.
We unearthed this fact in 2017, and have been trying to obtain explanations from the CPS ever since.
British lawyer Estelle Dehon, a top-notch FOIA specialist representing us together with Jennifer Robinson in our litigation in the United Kingdom, tells Il Fatto Quotidiano: “My client has been relentless in her request to know what has been destroyed, why and on whose instruction”.
Unfortunately, this relentlessness has not brought forth any serious explanation from the CPS: they claim to have no way of knowing what was lost when they destroyed the documentation and have never produced a written policy justifying the destruction of documents.
The mysterious destruction of emails by SPA
As if the destruction of documents by CPS were not troubling enough, in the course of our latest FOIA litigation in London the Head of the Extradition Unit at the Crown Prosecution Service, Mr. John Sheehan, stated that “the SPA [Swedish Prosecution Authority] appears to have previously deleted a substantial proportion” of its correspondence with CPS.
We have been trying to obtain these documents since 2015, and neither the Swedes nor the British have ever attempted to clarify to us how many pages the full correspondence between SPA and CPS consists of. The British authorities did provide us with an estimate, however: from 2010 to 2015, the Crown Prosecution Service and the Swedish Prosecution Authority exchanged between 7,200 and 9,600 pages of correspondence.
Over the last 8 years of our FOIA battle, we have obtained just 551 pages from the CPS and 1373 pages from the SPA. Of these 1373 pages of documents from the SPA, only 310 pages represent correspondence between the SPA and CPS. Which means we have barely obtained the tip of the iceberg.
A pattern of destruction
Documentation released to us under FOIA provides evidence that in at least one email exchange with the Crown Prosecution Service, Marianne Ny referred to the possibility of destroying documents. In 2012, when the Swedish television TV4 obtained a potentially embarrassing email, which according to the CPS and SPA was just a joke, Marianne Ny wrote in an email: “We would have been able to handle this matter in a better way if we had been informed when [sic] the decision to give TV 4 the correspondence. Even better if it had been deleted immediately after reading”.
In discussing this matter, her associate wrote: “Marianne [Ny] and I file all A-related emails in special folders, not available to or traceable for anybody but ourselves”.
And in March 2017, Marianne Ny did delete at least one email received from the FBI. Those were the months in which the CIA was so furious with WikiLeaks for publishing the secret CIA files known as “Vault 7” that they would later devise plans to kill Assange. The Swedish Administrative Court of Appeal later confirmed to us that the email message came “from an executive of the FBI” and that it “reached a chief prosecutor first at the end of March 2017. The message concerned a request for information. The message was answered by referring to information available at the website of the Prosecution Authority, whereupon the message was destroyed”. What did the email contain? And why did Marianne Ny destroy it, considering that we had for years been requesting any correspondence between the Swedish Prosecution Authority and the U.S. authorities and the SPA had always denied that such correspondence existed?
To unearth the truth after discovering that documents had been destroyed by the Crown Prosecution Service, we continued to seek explanations from the CPS and strove to obtain the correspondence from the Swedish Prosecution Authority’s side. After all, it was correspondence between them: though one party had destroyed it, it was possible that the other might still have it, and since the British authorities had estimated they had exchanged between 7,200 and 9,600 pages of correspondence between 2010 and 2015 alone, the documentation yet to be released to us was indeed voluminous. But Swedish prosecutor Eva-Marie Persson – who reopened the rape case for the third time, in May 2019, after Assange was arrested by the Metropolitan Police and incarcerated in Belmarsh – has always insisted that there were not as many pages as the British estimated. How is it this possible, considering that it was correspondence between them?
Represented by two highly-regarded Swedish lawyers, Percy Bratt and Susanne Feinsilber, we appealed to the Swedish Administrative Court of Appeal (Kammarrätten) and the Swedish Parliamentary Ombudsmen (Justitieombudsmannen, JO) to request an investigation into the discrepancy between what the British authorities told us and what the Swedish Prosecution denied, and into whether there really had been no correspondence with the U.S. authorities. Both the Swedish Administrative Court of Appeal and the Swedish Parliamentary Ombudsmen rejected our appeals. The Parliamentary Ombudsmen, Mr. Per Lennerbrant, rejected our request without any explanation for this refusal. “We presented such heavy evidence that it is very remarkable”, our Swedish lawyer, Percy Bratt, commented on their refusal.
Last week, with our latest FOIA litigation, the Crown Prosecution Service finally revealed what really happened: the Swedish Prosecution Authority destroyed “a substantial proportion of this material”.
To our request to know why the SPA destroyed public records about a legal case which is high- profile and highly controversial, Swedish prosecutor Eva-Marie Persson puzzlingly replied: “As far as I know, the Swedish Prosecution Authority have given you all the documents that you have asked for. There are regulations regarding sorting out documents in Sweden. The case regarding Julian Assange was sorted out [sic] 2017”.
Now that it is matter of fact that both the Swedes and the British destroyed key documentation on the case, will the British and Swedish authorities open a inquiry into who destroyed this correspondence, how, when and why? As Julian Assange’s life hangs in the balance, it is a matter of life or death to know what the documents contained.
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