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27 May - 2 June 2019 | 326 comments (326 topical, 0 editorial, 0 hidden)
Re: Europe HABEAS CORPUS (none / 0)
In 2010 the prosecutor asked the Stockholm district court to remand Assange in absentia. It agreed and the prosecutor issued a European Arrest Warrant.

In 2019 the prosecutor asked the Uppsala district court to remand Assange in absentia. It did not agree, finding it would be unpropotional as Assange is serving a jail sentence.

Nothing changed in the procedure on the Swedish side.

Now, it is possible that something has changed on the UK side, but I doubt it.

by fjallstrom on Tue Jun 11th, 2019 at 06:39:23 PM EST
[ Parent ]
Re: Europe HABEAS CORPUS (none / 0)
prohibition of arbitrary detention/arrest: Let us recall, you and I disagreed about the legitimacy of arrest by law enforcement agents absent bill charge(s) in Sweden--the pretext of an "investigation" of indeterminate duration which permits detention/arrest. This prescription for "democracy" is as heinous as any human rights violation fabricated by inscrutable Chines communists or alt-right Americans--a star chamber.

What has changed since 2010?
Authority of the ECJ(CJEU) with respect to 1. national laws; 2. "due process" criteria for warrant; and 3. proscription of EAW exercised by national "judicial authorities". (See FDEA/EAW discussion above.) EU directives and judicial opinion seeks administrative uniformity among member-states.

It is presumed that the criminal law authorities of other Member States comply with the right to a fair trial and other (related) fundamental rights. In practice, however, this presumption does not necessarily hold true.3
[...]
In other words, the political institutions did not make full respect for all fundamental rights a precondition for the lawful application of the EAW-system.5
[...]
Hence, it is important to establish what actually constitutes a judicial authority. The FDEAW requires Member States to establish which judicial authority shall be competent to issue and/or execute EAWs,24 but it does not define the term `judicial authority' itself. In practice, this has led to divergences among the Member States, with some of them having designated authorities that would appear to be political rather than judicial authorities.25
[...]
The CJEU's conclusions are logical.31 Common sense simply dictates that police services and ministries cannot be regarded as judicial authorities. It would be odd and indeed undesirable if the courts in the executing Member State were obliged 'to act on the orders of foreign policemen'32 or politicians.
As evinced in Sweden v. Assange and other cases plausibly directed by "non-judiciable" issues. UK and SE have since modified review of FDEAW application; codified in UK, temporarily remedied in SE (reverse of Stockholm district ct, 2010, by Uppsala district ct, June 2019, notwithstanding foreclosed review by SE appellate or supreme courts. wtf.)

What has not changed since 2010?
Enumerated civil rights of the person with respect to state authorities: It appears to me that protection of individuals, domestic or foreign, against police actions are limited or conditional. (Chapter 2: Fundamental rights and freedoms, Part 3: Rule of Law, Art. 9-11; Part 9: European Convention; Part 10: Conditions for limiting rights and freedoms, Art. 25) Concepts of civil rights and "rule of law" are not well developed in SE. One might argue specious, given the ambiguity of their applications. However, unilateral Prosecutorial Authority in SE government to exercise and conflict of interests in exercising EAW is closing with BREXIT. I bet, Ny knows this.

Diversity is the key to economic and political evolution.

by Cat on Tue Jun 11th, 2019 at 10:44:49 PM EST
[ Parent ]
Re: Europe HABEAS CORPUS (none / 0)
Remand pending charges is not indefinite detention, it is for fourteen days, count starting when you are remanded. It can be renewed, and each renewal needs a new court hearing. Of course it can be abused, but most systems can. I still consider it better than the bail system.

As far as I understand your position, it is that the world should just use identical processes as the UK and its former colonies. I have found this position among many supporters of Assange, and I find it rather focused on form over content. If you never had a Star Chamber, you won't find an act of parliament abolishing it, ie the Habeas Corpus Act. It could very well be that I have misunderstood your position, as I often find you hard to understand.

As far as your quote in the middle, I am uncertain what you are quoting.

In any case the process in Sweden hasn't changed. Prosecutor asks the court for a remand in absentia decision. If court grants remand, prosecutor issues European Arrest Warrant. The Uppsala court is quite clear in its statement that it finds that Assange is still suspected, and is still a flight risk. They only find differently than the Stockholm court because Assange is presently jailed and he wasn't then. I don't see how that constitutes any change in the process.

by fjallstrom on Wed Jun 12th, 2019 at 11:41:43 AM EST
[ Parent ]
Re: Europe HABEAS CORPUS (4.00 / 2)
I think the confusion for many in common law jurisdictions is that here, if a court finds probable cause, it issues the arrest warrant; the prosecutor has no such authority.  And it's kind of a big deal because I personally have dealt with several situations where cops have tried to intimidate clients with "warrants" they issued themselves.  Hence we are leery of any warrant issued by an enforcing authority rather than a tribunal.

As a side note, I think the inherent differences between common law and civil law systems (which were never identified and addressed when Maastricht was being hammered out) provided much of the grist for the "We have to take control back from the Brussels bureaucrats" elements of the Brexit campaign.

by rifek on Sun Jun 16th, 2019 at 01:41:19 PM EST
[ Parent ]

27 May - 2 June 2019 | 326 comments (326 topical, 0 editorial, 0 hidden)
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