9 ms·

> the principle of proportionality Sets a pretty bad precedent to not pursue someone because they've managed to evade the law...

netrus 12y ago
Not if the cost of evasion is similar to the expected punishment.
- pbhjpbhj 12y ago
  [I'm specifically not talking about Assange here but a generalised situation.] So, if there's a suspected rapist (someone accused of rape for example) who has been on the run for years then you wouldn't bother to take them to court as you'd consider their sentence to be served out whilst on the run? Would you apply this to all crimes? How do you determine the length of "sentence" without having a court case? Or is it just "well, he says it wasn't a bad rape and he's been hiding out for a few months let's call it even"?? The 'statute of limitations' for a crime needs to be much longer than the crime's potential maximum sentence. Paying a high cost now is necessary to avoid the well connected from being able to bypass the justice system in the future. It's not just about this one case; that can be seen as a flaw in precedence based systems.
  - nailer 12y ago
    If someone else accused of the crime was in a similar predicament - actively willing to speak to the prosecutor, but not willing to be extradited for questioning as the state may pursue them for other matters - then I imagine we'd apply the same reasoning, believing that we should perform the questioning as invited to rather than extraditing them.
    - PJDK 12y ago
      That is plausible, e.g. we would not extradite a person for one offence if it was likely the offender would then be charged with a capital offence. However, you need quite a lot more than the accused's assertion that this might happen. Under what Swedish statute might Assange be unjustly extradited to the US (and indeed, for breaking which US law? They haven't actually charged him with anything because I don't think he's done anything illegal there).
  - nodata 12y ago
    > The 'statute of limitations' for a crime needs to be much longer than the crime's potential maximum sentence. So if someone leaves Sweden for (more than?) the length of their sentence, that is comparable to carrying out their sentence?
    - celticninja 12y ago
      no because they could be extradited back to sweden if there was sufficient evidence of their crime. This is a particular situation where extradition is not possible.
    - kiiski 12y ago
      I don't know what the Swedish limits are, but in Finland the "right the charge a person of a crime" (whatever it would be called in English) will expire in: - never, if the maximum sentence would be life - 20 years, if the max is more than 8 years - 10 years, if the max is 2-8 years - 5 years, if the max is 1-2 years - 2 years, if the max is less than 1 year or a fine - if the crime was a "serious sexual crime against a child" it will expire at earliest when the victim turns 28
      - eCa 12y ago
        - never, for murder, genocide and similar (but informally 70 years) - 25 years, if max is life - 15 years, if max is more than 8 years - 10 years, if max is 2-8 years - 5 years, if max is 1-2 years - 2 years, if max is 1 year - for sexual crimes against children the limit is counted from the victim's 18th birthday. http://sv.wikipedia.org/wiki/Preskription http://sv.wikipedia.org/wiki/Preskription
  - Lawtonfogle 12y ago
    >The 'statute of limitations' for a crime needs to be much longer than the crime's potential maximum sentence. No, they need to be set based on how far back the evidence can hold and how well someone can make a reasonable defense. Especially in cases that have begun leaning towards guilty until proven innocent.
    - pbhjpbhj 12y ago
      Wouldn't that mean that when new techniques establish evidence that you'd need to change the law - that seems wrong, to base the law on technical limitations. Of course you still need to be evidence based in establishing whether there is even a case to answer. All criminal cases in non-corrupt courts in the West have a presumption of innocence.
      - Lawtonfogle 12y ago
        >that seems wrong, to base the law on technical limitations Why? The point is to ensure that the defendant can receive a fair trial. With video and DNA evidence, shouldn't there be a longer limit than if there is only a single witness testimony?
        pbhjpbhj 12y ago
        I don't see it that way. What I meant however was that the application of justice in the future shouldn't be restricted because now of _apparent_ limitations in evidence collection. For example if a rape victim doesn't get a rape-kit done does that mean that after a few months you declare the rapist to have served their time whilst at-large [obviously at that point you haven't determined legally if there was a rape] if a rape-kit is done then you give them 25 years when they could be held accountable before a court? The evidence doesn't have a bearing on the purpose of holding the criminal accountable. It's always possible that a new technique could arrive to gather evidence or a new source of evidence - a hidden personal diary, say - turns up.
        Lawtonfogle 12y ago
  - tomp 12y ago
    But as soon as you generalize the situation, the objection is much less relevant. Assange is obviously not trying to evade justice, or "on the run". He reported to the Swedish authorities when he was first accused and wanted for questioning and then only left Sweden after they allowed him to. When he was in house arrest in the UK, he was reporting to the police every week and was being totally cooperative with the authorities. He has also repeatedly suggested that the questioning be done over Skype or by having the prosecutor visit him in the UK, which is standard practice for crimes of similar graveness in Sweden. Only after he was supposed to be extradited did he become a "fugitive" and hid in the embassy. Furthermore, the women that could be the victims don't even want him to be persecuted, although the situation here is not clear-cut, as they could just say that to escape some retributive online justice, and since rape and similar crimes are considered crimes against the state and are persecuted by the state regardless of whether the victim wants that or not. In a generalized rape or another similar crime, you would probably have a crime that is more obvious and has more proof, a victim that wants justice, and a criminal that is actively avoiding justice from the very beginning. You have none of that here. Also, I don't know if that applies to all crimes or just to rape, but I find it rather funny that he cannot by persecuted "in absentia".
  - mc32 12y ago
    Roman Polanski serves a good example of the US pursuing someone accused of rape internationally with no statute of limitations. Of course Roman has son implicit support in Hollywood, being a famous director and all, but that has not stopped their efforts to apprehend him.
    - bbanyc 12y ago
      Polanski's situation is a bit different - he was charged, pleaded guilty, then fled the country before he was sentenced. The statute of limitations only sets a time limit for when a case can be initiated, not for when it must be completed, and Polanski's case from 1977 is still pending.
      - mc32 12y ago
        Thanks for the correction. That makes sense; I'm also glad they don't let him off just because he's famous and adored, he's actively being pursued.
kzrdude 12y ago
It is a precedent, and it hasn't been followed in this case. 2010 case, linked article is in Swedish: Irish musician batters swedish citizen; prosecutor doesn't want to do anything. "Extradition can only be used in serious cases, like murder", http://www.aftonbladet.se/nyheter/article12621641.ab http://www.aftonbladet.se/nyheter/article12621641.ab
- ptaipale 12y ago
  Actually, the Irish musician was eventually extradited to Sweden and prosecuted. http://www.aftonbladet.se/nyheter/article17836961.ab http://www.aftonbladet.se/nyheter/article17836961.ab It seems that in that case, the prosecutor initially dismissed the case as a drunken brawl on a ferry to Finland, and did not want to bother. Then there was some publicity and it was evident that it was a case of actual bodily harm. In a manner somewhat similar to Assange, the Irish musician evaded court sessions in Sweden by going to Portugal, but unlike Assange, did not seek asylum in the Ecuadorian embassy in Lisbon, and was returned to Sweden to stand trial.
  - kzrdude 12y ago
    Thanks, this is important information.
netcan 12y ago
I disagree. Proportionality is a very important principle. Precedents and laws are appropriate. I'm not sure how important precedents are in Swedish law though. First, we need limits against abuse of the law and legal system. I imagine Assange's representatives will be arguing that this is what is going on here. Being free of all proportionality restrictions allows bodies and individuals within the legal system the ability to pursue other agendas (say, strategic or diplomatic relations with the US) by abusing the legal system. If you put enough resources into investigation you can probably put anyone in jail. At the very least, you can disrupt their life dramatically with lengthy processes. Second, there's the practical issue of resources. Indictments are abandoned regularly because court systems are backlogged, expensive and limited in resources. Prosecuting 100 minor indictments per year needs to be weighed against timely prosecution of more serious crimes. This is triage, prioritizing resources (court days) in the face of limited resources. This is a strange case. Assange is accused of "non-consensual behaviour within consensual sexual encounters." This crime/law unique to Sweden. Very few people have been prosecuted under for it. Swedish authorities did not treat the case very seriously when they first investigated it and didn't make much effort to keep him in the country, apparently happy to let him leave the country. That aside, resources are always limited. Say you have a serious sexual harassment case. It takes place in a University. Prosecuting it require, extradition and millions in resources. Is the public better served by prosecuting the crime or staffing an entire police unit dealing specifically with sexual harassment cases in Universities? The costs are comparable, and the latter will result in tens or hundreds of convictions, far more deterrence and far more justice. I think it's entirely appropriate to refer to proportionality in cases like this. For certain crimes like large scale racketeering, corruption, murder, rape, and others proportionality is irrelevant. There are few limits that make sense for prosecuting a serial killer or a corrupt government minister.
- saosebastiao 12y ago
  I'm not anywhere informed enough to disagree, but all I can think about is Al Capone. He was ultimately taken down for tax evasion, but his crimes were widely known to be much worse. He merely took great care to have enough plausible deniability that he couldn't be charged for his worse crimes.
deleted 12y ago
[deleted]

netrus 12y ago

Not if the cost of evasion is similar to the expected punishment.

pbhjpbhj 12y ago
[I'm specifically not talking about Assange here but a generalised situation.] So, if there's a suspected rapist (someone accused of rape for example) who has been on the run for years then you wouldn't bother to take them to court as you'd consider their sentence to be served out whilst on the run? Would you apply this to all crimes? How do you determine the length of "sentence" without having a court case? Or is it just "well, he says it wasn't a bad rape and he's been hiding out for a few months let's call it even"?? The 'statute of limitations' for a crime needs to be much longer than the crime's potential maximum sentence. Paying a high cost now is necessary to avoid the well connected from being able to bypass the justice system in the future. It's not just about this one case; that can be seen as a flaw in precedence based systems.
- nailer 12y ago
  If someone else accused of the crime was in a similar predicament - actively willing to speak to the prosecutor, but not willing to be extradited for questioning as the state may pursue them for other matters - then I imagine we'd apply the same reasoning, believing that we should perform the questioning as invited to rather than extraditing them.
  - PJDK 12y ago
    That is plausible, e.g. we would not extradite a person for one offence if it was likely the offender would then be charged with a capital offence. However, you need quite a lot more than the accused's assertion that this might happen. Under what Swedish statute might Assange be unjustly extradited to the US (and indeed, for breaking which US law? They haven't actually charged him with anything because I don't think he's done anything illegal there).
- nodata 12y ago
  > The 'statute of limitations' for a crime needs to be much longer than the crime's potential maximum sentence. So if someone leaves Sweden for (more than?) the length of their sentence, that is comparable to carrying out their sentence?
  - celticninja 12y ago
    no because they could be extradited back to sweden if there was sufficient evidence of their crime. This is a particular situation where extradition is not possible.
  - kiiski 12y ago
    I don't know what the Swedish limits are, but in Finland the "right the charge a person of a crime" (whatever it would be called in English) will expire in: - never, if the maximum sentence would be life - 20 years, if the max is more than 8 years - 10 years, if the max is 2-8 years - 5 years, if the max is 1-2 years - 2 years, if the max is less than 1 year or a fine - if the crime was a "serious sexual crime against a child" it will expire at earliest when the victim turns 28
    - eCa 12y ago
      - never, for murder, genocide and similar (but informally 70 years) - 25 years, if max is life - 15 years, if max is more than 8 years - 10 years, if max is 2-8 years - 5 years, if max is 1-2 years - 2 years, if max is 1 year - for sexual crimes against children the limit is counted from the victim's 18th birthday. http://sv.wikipedia.org/wiki/Preskription http://sv.wikipedia.org/wiki/Preskription
- Lawtonfogle 12y ago
  >The 'statute of limitations' for a crime needs to be much longer than the crime's potential maximum sentence. No, they need to be set based on how far back the evidence can hold and how well someone can make a reasonable defense. Especially in cases that have begun leaning towards guilty until proven innocent.
  - pbhjpbhj 12y ago
    Wouldn't that mean that when new techniques establish evidence that you'd need to change the law - that seems wrong, to base the law on technical limitations. Of course you still need to be evidence based in establishing whether there is even a case to answer. All criminal cases in non-corrupt courts in the West have a presumption of innocence.
    - Lawtonfogle 12y ago
      >that seems wrong, to base the law on technical limitations Why? The point is to ensure that the defendant can receive a fair trial. With video and DNA evidence, shouldn't there be a longer limit than if there is only a single witness testimony?
      - pbhjpbhj 12y ago
        I don't see it that way. What I meant however was that the application of justice in the future shouldn't be restricted because now of _apparent_ limitations in evidence collection. For example if a rape victim doesn't get a rape-kit done does that mean that after a few months you declare the rapist to have served their time whilst at-large [obviously at that point you haven't determined legally if there was a rape] if a rape-kit is done then you give them 25 years when they could be held accountable before a court? The evidence doesn't have a bearing on the purpose of holding the criminal accountable. It's always possible that a new technique could arrive to gather evidence or a new source of evidence - a hidden personal diary, say - turns up.
        Lawtonfogle 12y ago
- tomp 12y ago
  But as soon as you generalize the situation, the objection is much less relevant. Assange is obviously not trying to evade justice, or "on the run". He reported to the Swedish authorities when he was first accused and wanted for questioning and then only left Sweden after they allowed him to. When he was in house arrest in the UK, he was reporting to the police every week and was being totally cooperative with the authorities. He has also repeatedly suggested that the questioning be done over Skype or by having the prosecutor visit him in the UK, which is standard practice for crimes of similar graveness in Sweden. Only after he was supposed to be extradited did he become a "fugitive" and hid in the embassy. Furthermore, the women that could be the victims don't even want him to be persecuted, although the situation here is not clear-cut, as they could just say that to escape some retributive online justice, and since rape and similar crimes are considered crimes against the state and are persecuted by the state regardless of whether the victim wants that or not. In a generalized rape or another similar crime, you would probably have a crime that is more obvious and has more proof, a victim that wants justice, and a criminal that is actively avoiding justice from the very beginning. You have none of that here. Also, I don't know if that applies to all crimes or just to rape, but I find it rather funny that he cannot by persecuted "in absentia".
- mc32 12y ago
  Roman Polanski serves a good example of the US pursuing someone accused of rape internationally with no statute of limitations. Of course Roman has son implicit support in Hollywood, being a famous director and all, but that has not stopped their efforts to apprehend him.
  - bbanyc 12y ago
    Polanski's situation is a bit different - he was charged, pleaded guilty, then fled the country before he was sentenced. The statute of limitations only sets a time limit for when a case can be initiated, not for when it must be completed, and Polanski's case from 1977 is still pending.
    - mc32 12y ago
      Thanks for the correction. That makes sense; I'm also glad they don't let him off just because he's famous and adored, he's actively being pursued.

kzrdude 12y ago

It is a precedent, and it hasn't been followed in this case. 2010 case, linked article is in Swedish: Irish musician batters swedish citizen; prosecutor doesn't want to do anything. "Extradition can only be used in serious cases, like murder", http://www.aftonbladet.se/nyheter/article12621641.ab http://www.aftonbladet.se/nyheter/article12621641.ab

ptaipale 12y ago
Actually, the Irish musician was eventually extradited to Sweden and prosecuted. http://www.aftonbladet.se/nyheter/article17836961.ab http://www.aftonbladet.se/nyheter/article17836961.ab It seems that in that case, the prosecutor initially dismissed the case as a drunken brawl on a ferry to Finland, and did not want to bother. Then there was some publicity and it was evident that it was a case of actual bodily harm. In a manner somewhat similar to Assange, the Irish musician evaded court sessions in Sweden by going to Portugal, but unlike Assange, did not seek asylum in the Ecuadorian embassy in Lisbon, and was returned to Sweden to stand trial.
- kzrdude 12y ago
  Thanks, this is important information.

netcan 12y ago

I disagree. Proportionality is a very important principle. Precedents and laws are appropriate. I'm not sure how important precedents are in Swedish law though. First, we need limits against abuse of the law and legal system. I imagine Assange's representatives will be arguing that this is what is going on here. Being free of all proportionality restrictions allows bodies and individuals within the legal system the ability to pursue other agendas (say, strategic or diplomatic relations with the US) by abusing the legal system. If you put enough resources into investigation you can probably put anyone in jail. At the very least, you can disrupt their life dramatically with lengthy processes. Second, there's the practical issue of resources. Indictments are abandoned regularly because court systems are backlogged, expensive and limited in resources. Prosecuting 100 minor indictments per year needs to be weighed against timely prosecution of more serious crimes. This is triage, prioritizing resources (court days) in the face of limited resources. This is a strange case. Assange is accused of "non-consensual behaviour within consensual sexual encounters." This crime/law unique to Sweden. Very few people have been prosecuted under for it. Swedish authorities did not treat the case very seriously when they first investigated it and didn't make much effort to keep him in the country, apparently happy to let him leave the country. That aside, resources are always limited. Say you have a serious sexual harassment case. It takes place in a University. Prosecuting it require, extradition and millions in resources. Is the public better served by prosecuting the crime or staffing an entire police unit dealing specifically with sexual harassment cases in Universities? The costs are comparable, and the latter will result in tens or hundreds of convictions, far more deterrence and far more justice. I think it's entirely appropriate to refer to proportionality in cases like this. For certain crimes like large scale racketeering, corruption, murder, rape, and others proportionality is irrelevant. There are few limits that make sense for prosecuting a serial killer or a corrupt government minister.

saosebastiao 12y ago
I'm not anywhere informed enough to disagree, but all I can think about is Al Capone. He was ultimately taken down for tax evasion, but his crimes were widely known to be much worse. He merely took great care to have enough plausible deniability that he couldn't be charged for his worse crimes.

deleted 12y ago

[deleted]