1 September 2010

Sweden Decision and Law on the Assange Probe

http://www.aklagare.se/In-English/

[1 September 2010]

Decision on the request for review

Director of Public Prosecution Ms Marianne Ny has decided on the request for review in the Assange matter.

The investigation concerning rape will be reopened.

- There is reason to believe that a crime has been committed. Considering information available at present, my judgement is that the classification of the crime is rape. The basis for further considerations is not sufficient at the moment. More investigations are neccessary before a final decision can be made.

The investigation concerning molestation will be extended to include all allegations in the original police report.

- There is reason to believe that a crime has been committed. Based on the information available, the crimes in question come under the heading of sexual coercion and sexual molestation, respectively.

Director of Public Prosecution Marianne Ny will be leading the further investigations. She will be assisted by Deputy Chief Prosecutor Ms Erika Lejnefors.

- Due to the investigation and the persons involved in the matter, I cannot give more information concerning details in the investigation.

Director of Prosecution

Marianne Ny

+46 31 739 41 04

Chapter 7, section 5:

The Prosecutor-General, Directors of Public Prosecution and Deputy Directors of Public Prosecution may themselves take on an assignment that would otherwise be the responsibility of a subordinate prosecutor.

Background information

The Swedish Penal Code

See Chapter 6, On Sexual Crimes, sections 1, 2, and 7.

See also Chapter 4, On Crimes against Liberty and Peace, section 7

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Chapter 6

On Sexual Crimes

Section 1

A person who by violence or threat which involves, or appears to the threatened person to involve an imminent danger, forces another person to have sexual intercourse or to engage in a comparable sexual act, that having regard to the nature of the violation and the circumstances in general, is comparable to enforced sexual intercourse, shall be sentenced for rape to imprisonment for at least two and at most six years. Causing helplessness or a similar state of incapacitation shall be regarded as equivalent to violence.

If having regard to the nature of the violence or the threat and the circumstances in general, the crime is considered less serious, a sentence to imprisonment for at most four years shall be imposed.

If the crime is gross, a sentence to imprisonment for at least four and at most ten years shall be imposed for gross rape. In assessing whether the crime is gross, special consideration shall be given to whether the violence involved a danger to life or whether the perpetrator caused serious injury or serious illness or, having regard to the method used or the victim's youth or other circumstances, exhibited particular ruthlessness or brutality. (Law 1998:393)

Section 2

A person who, under circumstances other than those defined in Section 1, makes someone engage in a sexual act by unlawful coercion shall be sentenced for sexual coercion to imprisonment for at most two years.

If the person who committed the act exhibited particular ruthlessness or if the crime is otherwise considered gross, a sentence of at least six months and at most four years shall be imposed for gross sexual coercion. (Law 1992:147)

Section 7

If a person sexually touches a child under fifteen years of age otherwise than as previously provided in this Chapter, or induces the child to undertake or participate in an act with sexual implication a fine or imprisonment for at most two years shall be imposed for sexual molestation.

A sentence for sexual molestation shall also be imposed on a person who by coercion, seduction or other improper influence induces a person who has attained the age of fifteen but not eighteen to undertake or participate in an act with sexual implication if the act is an element in the production of pornographic pictures or constitutes pornographic posing in circumstances other than those relating to the production of a picture.

This shall also apply if a person exposes himself or herself in such a manner that the nature thereof gives offence or otherwise manifestly behaves indecently by word or deed towards the latter in a way that flagrantly violates a sense of propriety. (Law 1994:1499)

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Chapter 4

On Crimes against Liberty and Peace

Section 1

A person who seizes and carries off or confines a child or some other person with intent to injure him or her in body or health or to force him or her into service, or to practise extortion, shall be sentenced for kidnapping to imprisonment for a fixed period of at least four and at most ten years, or for life.

If the crime is of a less serious nature, imprisonment for at most six years shall be imposed. (Law 1998:393)

Section 2

A person who, in cases other than those stated in Section 1, kidnaps or confines someone or in some other way deprives him or her of liberty, shall be sentenced for unlawful deprivation of liberty to imprisonment for at least one and at most ten years.

If the crime is of a less serious nature, a fine or imprisonment for at most two years shall be imposed. (Law 1998:393)

Section 3

A person who otherwise than as stated in Section 1 or 2, by unlawful coercion or deceit, causes the entry of someone into military or work service or other similar condition of restraint or induces someone to go or remain in a place abroad where he or she may be in danger of being exposed to persecution or exploited for casual sexual relations or otherwise fall into distress, shall be sentenced for placing a person in a distressful situation to imprisonment for at least one and at most ten years.

If the crime is of a less serious nature , a fine or imprisonment for at most two years shall be imposed. (Law 1998:393)

Section 4

A person who, by assault or otherwise by force or by threat of a criminal act, compels another to do, submit to or omit to do something, shall be sentenced for unlawful coercion to a fine or imprisonment for at most two years. Anyone who to such effect exercises coercion by threatening to prosecute or report another for a crime or give detrimental information about another, shall also be sentenced for unlawful coercion, provided that the coercion is wrongful.

If the crime referred to in the first, paragraph is gross, imprisonment for at least six months and at most six years shall be imposed. In assessing whether the crime is gross special consideration shall be given to whether the act included the infliction of pain to force a confession, or other torture.

Section 4a

A person who commits criminal acts as defined in Chapters 3, 4 or 6 against another person having, or have had, a close relationship to the perpetrator shall, if the acts form a part of an element in a repeated violation of that person’s integrity and suited to severely damage that person’s self-confidence, be sentenced for gross violation of integrity to imprisonment for at least six months and at most six years.

If the acts described in the first paragraph were committed by a man against a woman to whom he is, or has been, married or with whom he is, or has been cohabiting under circumstances comparable to marriage, he shall be sentenced for gross violation of a woman’s integrity to the same punishment. (Law 1998:393)

Section 5

A person who raises a weapon against another or otherwise threatens to commit a criminal act, in such a manner that the nature thereof evokes in the threatened person a serious fear for the safety of his own or someone else's person or property, shall be sentenced for unlawful threat to a fine or imprisonment for at most one year.

If the crime is gross, imprisonment for at least six months and at most four years shall be imposed. (Law 1993:207)

Section 6

A person who unlawfully intrudes or remains where another has his living quarters, whether it is a room, a house, a yard or a vessel, shall be sentenced to a fine for breach of domiciliary peace. A person, who, without authorisation, intrudes or remains in an office, factory, other building or vessel or at a storage area or other similar place, shall be sentenced for unlawful intrusion to a fine.

If the crime mentioned in the first or second, paragraph is gross, imprisonment for at most two years shall be imposed.

Section 7

A person who physically molests or by discharging a firearm, throwing stones, making loud noise or other reckless conduct molests another, shall be sentenced for molestation to a fine or imprisonment for at most one year. (Law 1993:207)

Section 8

A person who unlawfully obtains access to a communication which a postal or telecommunications firm delivers or transmits in the form of mail or as a telecommunication, shall be sentenced for breach of postal or telecommunication secrecy to a fine or imprisonment for at most two years. (Law 1993:601)

Section 9

A person who, in a case not covered by Section 8, unlawfully opens a letter or a telegram or otherwise obtains access to something kept under seal or lock or otherwise enclosed, shall be sentenced for intrusion into a safe depository to a fine or imprisonment for at most two years.

Section 9a

A person who, in a case other than as stated in Section 8, unlawfully and secretly listens to or records by technical means for sound reproduction, speech in a room, a conversation between others or discussions at a conference or other meeting to which the public is not admitted and in which he himself does not participate, or to which he has improperly obtained access, shall be sentenced for eavesdropping to a fine or imprisonment for at most two years. (Law 1975:239)

Section 9b

A person who employs technical means with the intention of committing a breach of telecommunication secrecy in the manner stated in Section 8 or to commit a crime as defined in Section 9a, shall be sentenced for preparation of such a crime to a fine or imprisonment for at most two years if he is not responsible for a completed crime. (Law 1975:239)

Section 9c

A person who, in cases other than those defined in Sections 8 and 9, unlawfully obtains access to a recording for automatic data processing or unlawfully alters or erases or inserts such a recording in a register, shall be sentenced for breach of data secrecy to a fine or imprisonment for at most two years. A recording in this context includes even information that is being processed by electronic or similar means for use with automatic data processing. (Law 1998:206)

Section 10

Attempt, preparation or conspiracy to commit kidnapping, unlawful deprivation of liberty or placing a person in a distressful situation, and any failure to reveal such crimes, shall be adjudged in accordance with the provisions of Chapter 23. The same shall apply to an attempt or preparation to commit unlawful coercion of a serious nature or breach of data secrecy, which if it had been completed, could not be considered petty. (Law 1998:206)

Section 11

Breach of domiciliary peace or unlawful intrusion not of a serious nature, unlawful eavesdropping not committed in a public place or preparation for such a crime, molestation which did not occur in a public place, or intrusion into a safe depository, may be prosecuted by a prosecutor only if the injured party reports the crime for prosecution or if prosecution is called for in the public interest. This also applies to unlawful coercion by threatening to prosecute or to inform on another for a crime or to give detrimental information about another, as well as an attempt to commit or prepare such a crime. (Law 1975:239)

On review

Retrial

It is possible to request a retrial of a prosecutor’s ruling concerning, for example, a discontinued preliminary investigation or a decision not to bring charges. Requests for retrials are made by one of the Prosecution Authority’s prosecution development centres.

If a request for a retrial is received by a public prosecution office, first of all the prosecutor who made the ruling shall decide whether or not any new circumstances have come to light in the matter.

If new circumstances are cited, the prosecutor reconsiders his/her decision. If this reconsideration fails to result in any change to the original ruling, the matter is referred to the prosecution development centre. The same applies if there are no new circumstances to be considered in the case.

At the prosecution development centre, the case will be reviewed by the Director of Public Prosecution, who will then make a decision on, for instance, the resumption of a discontinued investigation or that certain investigation measures should be taken. The case is then referred back to the original public prosecution office, but to a different prosecutor.

Decisions made by a prosecution development centre can also be reviewed, and the matter will in this case be handled by the Office of the Prosecutor-General.

Few rulings are changed

During 2008, over 2 000 rulings by prosecutors were retried at the four prosecution development centres. This is less than 1 per cent of all the prosecutor rulings that were made during the course of the year. Prosecutor rulings were revised in 220 cases (approximately 11 per cent of the retrials conducted and some 0.04 per cent of all prosecutor rulings).