I'm still waiting for someone to explain why it is OK to shoot anyone. Sometimes (when it is a question of self-defence; i.e one person is definitely going to die, so it may as well be the person instigating the incident) it might be justifiable, but I'm not sure it should ever be OK...
I'm trying to work out if you're being sarcastic or not... so I will assume not.
What is this world coming to when we want to "invalidate" the findings of a jury? What is the purpose of law and trials and jury if we're just going to "overturn" any ruling that is unpopular?
Juries are inherently unreliable. They introduce huge uncertainties into how rulings will go, they make findings based on whatever they want to, rather than on the facts and the law. They have all sorts of hidden prejudices, they may or may not have expertise in an area (or even worse, may *think* they have expertise).
In this case, we *know* they didn't do their job carefully because the judge had to send the verdict back due to it having at least one glaringly-obvious flaw.
Why did it need to take _days_ for the jury to find in this case? This isn't a murder trial without a murder weapon. Nor is it some complicated manslaughter case involving cell-phone use while driving... or any other type of "grey area" type case with dire consequences of getting it wrong.
But in terms of fact (not law) those cases would be considerably simpler. In the murder trial, the question would be "did the defendant commit the murder, yes or no?" (probably down to 3 or 4 findings of fact). In the manslaughter case, you would probably have even fewer questions (depending on the kind of manslaughter) but they might be more complex ones. But still only a handful of facts to decide on.
Contrast that with this case, where the jury had some 700 questions to decide on, including some pretty technical ones, based on reams of evidence (as to prior art, knowing infringement, validity of patents and so on), so that's not just one conclusion, buy 700 conclusions. In theory, they should be going through each of these questions carefully and thoroughly, considering all the evidence in each case, then moving onto the next separately. That isn't something that can be done quickly. Nor should it be, particularly when the majority of people involved are not experts in the field. Some lawyers following the trial are suggesting that took *them* (experts in some of this stuff) nearly three days just to understand the questions, never mind answering them.
Juries have their place in a legal system; they're there to decide on simple questions of fact, and whether a reasonable person might do something. But there is a reason why there are very few jurisdictions have 'traditional' juries involved in anything but serious criminal cases (iirc Germany doesn't use them at all).
It looks like the US is stuck with juries even in civil law cases due to the 7th amendment (which, rather amusingly, requires juries in common law, civil cases where the value in question is $20 or more...).
I assume that you are supposed to run the algorithm a few times and see which answer comes up most often (about 50% of the time) and assume it is true. The point being that running this algorithm a few times is significantly faster than running the equivalent algorithm on a non-quantum(?) computer (particularly when dealing with huge near-prime numbers), so what you lose in accuracy you make up for in time.
This is the basis for most "quantum" things (such as qubits); you can theoretically encode an infinite amount of stuff in them, but because they work probabilistically rather than Newtonianly (i.e. pre-determined), you have to take an infinite number of measurements to get all the information out. So you're not getting something for nothing, but if you can live with a small level of uncertainty or inaccuracy, then you might be better off taking the "quantum" route.
But I'm not a CS person (although I did do some quantum mechanics stuff a while back, which included looking into the maths behind some quantum computing things).
Correction: it has been pointed out to me that a woman *can* commit rape in England, but only as part of a joint enterprise; i.e. when the man does the raping and the woman is associated somehow.
By that logic an American living in 1800 should be able to kill her slave.
To be blunt, yes. Legally, they should be able to dispose of their property how they choose.
That's why we make slavery illegal; so all people are people, and not property.
Is a foetus a person? That gets a bit more tricky, as unlike a slave, they're not an independent life form (but then you have to define life form, or "organism" to use the word you did). Does it become a person as soon as it is fertilised (in which case, doing something normal that risks terminating a pregnancy without realising the person is pregnant could be negligent manslaughter)? Or when born? Or when it is reasonably capable of independent life (a question of scientific fact, not politics)?
I don't know about you, but personally I'm happier going with the middle option from a legal point of view, and with the latter from a scientific point of view.
Then we can start asking if animals are people? What about if/when some other species achieves a similar level of awareness to humans? What about aliens (if they exist)?
Things get messy really quickly when you start going down this road. For now, I'll stick with saying that abortion is a tragedy, but should be legal up to the scientific point noted above (or afterwards, when doing so would count as "self-defence" if prosecuted for murder).
I'm pretty much with you right up until the final paragraph; the idea that men cannot be raped (legally true until recently in England - and it's still the case here that a woman (probably) cannot commit rape due to a technicality) is one of those myths that really needs dispelling. However...
I really do believe that it is possible to have a no-fault rape case. Both participants get smashed and fuck like rabbits while out of their minds, and assert they would never have consented to the sex while sober. How does the law react to such a circumstance? Does it punish both victims for their over-indulgences? Who pays child support?
The idea of a "no-fault rape" case seems... a rather terrible idea. It suggests that someone can intentionally have sex with another (or however you define "rape" legally), without a reasonable belief that they are consenting to that sex, but without them being at fault. I fail to see how that can work. If you are intoxicated enough that you don't "intend" to do it, then it isn't legally rape (although I'm not sure English law would be willing to accept that defence, and then you have issues of voluntary intoxication, diminished capacity and so on). If not, you're still committing rape - that is, doing something that is "wrong".
Crimes are generally crimes (rather than torts etc.) because they are viewed as "public wrongs" - things that are so bad, that the state should step in and punish those who do it, no matter who the victim is.
The fact that the other person may also be raping you isn't that important - it would kind of be like arguing that if two people stole from each other (or killed each other), neither committed a crime. The crime is the act done by the accused, not the loss suffered by the "victim".
That said, I don't imagine there are many cases where a mutual rape would occur and be reported, and then there's the issue of whether or not it would be prosecuted. In practice, as noted in your earlier points, I imagine the man (assuming a man and a woman) would find himself accused of rape and trying to find a suitable defence (possibly forced/shamed into pleading guilty).
Actually, your anecdote only proves that one woman lied about rape.
For more general facts; according to the English CPS (not a wholly unbiased source either), about "2% of all reported rapes are false, which is slightly less than false reporting in all other crimes."
While you're there, you might want to read #10 as well, just for future reference (not that I with to suggest you did commit rape; but that the "staying in bed for about 5 hours" may not be as relevant as it sounds). But yes, you were that 1 in 50 rape accusations that was false. But 1 in 50 isn't "most".
In some places (for example, England), the key feature is the lack of consent (and the lack of a reasonable belief in consent) rather than "force". So the threat of force (express or implied) would count, but also a lack of capacity to consent (such as being intoxicated or asleep), or some sort of deception. [If you want to see a really weird, disturbing, but unforced case of rape, look up R v Jheeta.]
Of course, this still has problems; for example, you could have a situation where two people raped each other, if they were both deceiving each other as to some material point. As far as I know, that's never come up in court, though.
1. At the moment, this is still an extradition (or more technically, "surrender") process. That means they're just looking to see if there is a case at first glance. At first glance there is evidence of a lack of consent (or more importantly, a lack of reasonable belief in consent), and that is enough. There may be evidence to refute that (although technically, actions after a alleged crime aren't directly relevant to it - what matters is whether there was consent at the actual time), but that is a matter for the trial, when evidence can be presented, witnesses called and cross-examined (and where the facts can be argued rationally and clearly, rather than an arguments based on guesses and speculation that we've seen in the media etc.).
2. Again (re 3) above) that's odd. But I'm not sure why (and clearly neither are the various courts) that should stop the process before the trial has begun. That is something to be discussed at trial when it comes to admissibility of evidence and whatnot?
Yet again we have the whole "he'll get black bagged straight away" argument. Yes. Maybe the Swedish government will blatantly and very publicly break national, European and international law. But then maybe the UK government will do the same and will illegally kidnap him from the Ecuadorian embassy (or maybe they would have just sent him to Sweden without a hearing here). Or maybe the US will do that and just grab him from the Ecuadorian embassy... or maybe they could have just grabbed him from the UK when he was under house arrest, or Sweden back when he was there when this all started. Or they could have just shot him when on the balcony on Sunday. Or Sweden could do that and just grab him from the UK rather than going through the EAW process.
If governments are willing to break the law, there's really not much you can do to stop them; all evidence so far suggests that both the UK and Swedish governments are willing to stick to the law. The US isn't even officially involved yet.
The whole "Assange will just be extradited before his trial" thing is flawed because it is based on the assumption that the Swedish government, with half the world's media watching, will openly and blatantly break national, European and international law.
In the case of the two Egyptians, it seems to have taken 3 years for the national media to pick it up, 6 years for a lawsuit to be filed (in the US) and another year for the case in Sweden to be settled. Secrecy and the lack of public interest isn't going to protect the Swedish government.
On the subject of prevention, the problem with that is that it is still a proportionality argument. Otherwise we would never arrest anyone, because there's always a chance they might face inhuman and degrading treatment. However, it is an argument, it can be made in courts, including in extradition cases (a UK->Argentina extradition was refused earlier this year on Article 3 grounds). But Assange hasn't made it. He hasn't brought it up, he hasn't provided any evidence, he hasn't argued it.
IF the US try to extradite him, then he will be able to raise those arguments firstly in the Swedish Supreme Court, and then in the English courts if the UK government approves extradition. Then he may still be able to appeal to the ECHR. If the Swedes extradite him before that process is completed, they will probably (if he has semi-decent lawyers) have broken the law, and we're back to point 1 above.
The extradition of Assange to the US will be completely legal, of course. The US will undertake not to give him the death penalty.
So now we're back to assuming the Swedes actually follow the law. But we assume the US gives assurance (about not using the death penalty, not torturing him, giving him a fair trial etc.) but are willing to break them (which raises the question of why, if he's sure they can't be trusted, Assange is using a lack of assurances as an excuse). Yes, they could do this (assuming that the Swedish and UK courts accept the arguments). But it would be a one-time-only option. They would never be able to extradite someone from the EU again because any future assurances would be worthless. Somehow, I don't think that the US authorities hate Assange quite that much.
[The comment about the assassination of Lindh meant that she was 'blamed' for everything, but it wasn't possible to bring a case or action against her due to her being dead. Hence the lack of political or legal consequences to the perpetrators. My point would be that that is unlikely to work with Assange, rather than that it couldn't happen because the main person responsible (and the entire government) is no longer in power.]
The main problem I have with all of these arguments is they end up coming down to one government or another openly disregarding national, European and/or international laws. If they really hate Assange that much, why not just take him when he was under mansion arrest? Or drag him from the Ecuadorian embassy (without going through a full legal process first)? Or just shoot him? Because there will be consequences. That's how the law works. It doesn't stop bad things happening - it can't. But it tries to stop people from doing bad things by imposing consequences/
It took you half an hour to find the link on that page I gave you? Hint: It's in the first paragraph of the section called "Temporary surrender".
Ok, I completely missed that... I could justify it by claiming I wanted an unbiased view, or whatever, but I just got bored and stopped reading the article when I read the "bilateral agreement" part, and decided to research it for myself. [For some reason, I find the layout of that site rather confusing and unhelpful.] Still, encouraging that I managed to find the right thing on my own, without going through any Assange-specific pages (it was an interesting path, going through the EU-US treaty as well, a few other things).
But... my point still stands. That only applies *after* the extradition request is granted. It is an extra step on top of normal extradition, rather than some short-cut. Assange's argument on that point would seem to be nonsense.
Do you really not believe that somebody, somewhere badly wants Assange in Sweden?
To the first, someone probably does want him. From what I've read, it's probably the Swedish prosecutor who is trying to make a name for herself on the back of a high-profile rape case (i.e. it is personal politics, rather than US pressure). But again, the Swedish and English courts have examined this, and found nothing improper.
Why aren't the USA trying to extradite him from the UK?
Maybe because the US don't actually want him?
Why has the USA stepped up its diplomatic relations with Sweden recently (eg. Hillary Clinton's visit)?
Ah, so now visiting Sweden is part of a conspiracy?
Why are the Swedish courts stonewalling Assange when he tries to communicate with them?
I thought it was the prosecutors running this, not the court? And that they had filed an EAW, and it had been Assange trying everything he could to not comply. Or are we reading different stories?
Oh, he has. He's tried every known method of communication with the Swedish legal system.
I was referring more to the English courts, where this issue was very briefly discussed (at the initial hearing) but Assange made no arguments and presented no evidence (not even presenting this treaty). You'd think that if it were a smoking gun, it would be at the top of his submissions, but it was an afterthought. As for the Swedish legal system, I understand he appealed the initial arrest warrant to the Court of Appeal there, which found nothing invalid with it - other than that, I don't see what legal steps he should be able to take; there's an arrest warrant (which he challenged), next comes a trial... but he's still avoiding that.
Nope. The court's only words so far have been, "Come to Sweden...come to Sweden..."
If you have a copy of the Swedish courts' judgments (whether saying that or not), I'll happily read them as well...
Re ECHR and Agiza and Alzery... yes, they could have challenged their rendition. Except they didn't need to go to the ECHR. From the article you linked: "In July 2008, and September 19, 2008 they were each awarded 3 million SEK ($380,000) in damages in a settlement with the Swedish ministry of justice."
The then Swedish government acted illegally, although it seems the minister involved was assassinated before a full investigation could happen, but it seems unlikely they would be able to get away with that again. Also worth noting that that was two (kind of three) governments ago.
This event happened in late 2001, at the height of the initial anti-terrorist scare (and before certain legislation - at least in the UK, and treaties elsewhere that would restrict it). Following this, and other cases, various legal authorities, including within the EU and CoE have come down firmly against this sort of thing and, while I cannot guarantee it, one hopes that it will not happen again. At least, within the EU.
The main difference with Assange is that he is far more high-profile. If the Swedish government did try to do this (illegally), I imagine there would be pretty serious repercussions, pretty quickly.
As for damages being insufficient - some times bad things happen, and are impossible to undo. That's what damages are for; to try to compensate.
On the subject of Bradley Manning - was he extradite from Iraq, or did he never leave US custody/control? But certainly his treatment would be illegal in the CoE states. And his case represents strong evidence Assange could use if the US ever tried to extradite him (from the UK or Sweden). That is, assuming he can find any lawyers still willing to represent him...
You're missing the sentence after that: "There has been no evidence regarding this." Then re-read the final paragraph of my post.
If you're worried about something, think it has a major issue, and have evidence to back that up, generally you try to present that at your hearing... if you don't present it, then it seems either you're not actually worried about it, it's not a major issue, or you have no evidence.
Based on what I've seen, he was charged, then the charges dismissed and he was free to go. Then, apparently Sweden doesn't have a concept of double jeopardy (most places don't restrict it nearly as much as the US does), he was charged again for the same thing, but only after consultation with the US.
No. The timeline is a bit fuzzy, but it seems an investigation was started, then stopped by a more senior prosecutor, then started up by an even more senior one. Double jeopardy isn't an issue, as it is different decisions being made as the case goes up the chain of command (possibly as more experienced people read the case, or more evidence came in) - he wasn't charged or tried with the same thing twice.
There doesn't seem to be any evidence for US pressure at that point. If anything, it seems the senior prosecutor may have pushed the investigation onwards for her own personal political reasons (a high-profile rape case for a public prosecutor campaigning on being tough against alleged rapists?), but the investigation has been challenged legally (I think on that point, if there is evidence for it) and found to be a bit unusual, but valid.
Why have they refused to interview him remotely, as they have done before?
Why shouldn't they? They don't want to just question him, but formally interview him, in custody, as part of the charging process. In Sweden, that's done after arrest in most cases, especially for those accused of rape. If you can find one case where they've done this remotely, with someone in the EU, who is accused of rape, then this might be a serious point.
What is happening is that America (and most Americans) don't want the U.S. government to be subordinated below some global government. We've already seen what happens when sovereignty is surrendered to a more universal government, and for the most part we don't want to see that happen again. Once was enough and even then that universal government has likely gone too far.
As a European, I wonder if the trick to this is partial surrender of some powers to various different governments. Here in the UK, we have a UK government controlled (in theory - in practice it is the other way around) by a sovereign Parliament which (in theory) has absolute power. Except it passed a law making it part of the EU, and thus subservient to the EU, meaning the EU has absolute power. Except the UK Parliament can undo that law at any time... Oh, and then there's the Council of Europe. In theory, the European Court of Human Rights (run by the CoE) trumps both the UK Parliament and the EU. Except it needs the national governments' co-operation to enforce its rulings, and if they say no, there's not much the ECHR can do.
By separating the powers between the three blocks, you can obtain some level of balance, whereby no one part has complete control, each being held in check by the others (much like the traditional concept of separation of powers, but splitting power based on competence, rather than function). In this case, the EU has competence over mainly economic, and trade issues, expanding into business-type regulations, consumer protection; those sorts of fiddly, unglamorous things. The ECHR covers the fundamental rights stuff, protecting the really basic freedoms and the really big things. The national Parliaments fill in the gaps, and implement stuff.
Personally, I think it works quite well. But I may be in the minority.
Interviewing abroad: They have done this before, even with people suspected of murder. And when a prosecutor got an arrest warrant against a suspected tax evader resident in Dubai, the Swedish supreme court reversed this as disproportional because the person was available for interview in Dubai and merely didn't want to travel to Sweden.
But that's a proportionality argument, so is likely to be very fact-dependent. In Assange's case, he has no real ties to the UK, he doesn't live here, he clearly has no trouble travelling between the UK and Sweden and, unlike Dubai, the UK is in the EU, so the whole "mutual recognition of judicial authorities" stuff comes into play, and it is "surrender" rather than "extradition" and so on... Proportionality on this issue was raised in the English courts, but dismissed.
As for ease of extradition, even if they're political decisions in Sweden, they should still be protected by the ECHR and so challengable in court. If not, the UK government must also give approval and that is definitely subject to judicial review. As for the UK government's willingness to do so, despite what you may have read, while the government does have a say in extraditions (to the US), they have very few grounds on which they can refuse extradition, and doing so for political reasons would be illegal. That doesn't mean it wouldn't happen, but they'd have to be very careful about it.
From what I understand, the maximum penalty he could receive is less than the time he already served "in custody" in the UK, plus a rather small fine, relatively speaking.
I think that's one of those myth-things. From what *I* understand the maximum penalty is 4 years in prison. Plus I'm not sure whether his time under house arrest would count towards that, or just his time actually in prison (a few days way back at the start of all of this).
He *is* wanted for trial (which is partly why questioning him in the UK isn't good enough). That's a translation/different legal system issue. Under Swedish law, the interview-thing is the next step in the on-going prosecution and is immediately followed (if necessary) by charging, then (within 2 weeks) a trial. The High Court found that had he been wanted by the UK, he would have been charged ages ago; it's just a procedural difference between jurisdictions.
They have in the past interviewed abroad a murder suspect and someone suspected of tax evasion, so it isn't a question of them wanting due diligence for the sake of the accusers in this case.
Do you have more details on these cases? Was there any factor in particular (such as the host country not being subject to the EAW process or a simple extradition treaty) that caused it?
A bit of digging suggests that they *can* charge someone (or try them, the two seem to be necessarily and strongly connected in Swedish law, unlike in English law), however it is reserved for cases where it is impossible or impractical to access the defendant. That obviously isn't (or rather, wasn't) the case here, as Assange surrendered himself to the UK police and then was held under house arrest, and was therefore easily accessible via an EAW (in theory). It may be that the Swedish authorities now charge him in absentia due to him absconding, although I imagine then we'll just get all the "denied a fair trial" arguments from the Assange supporters...
a) Nothing about this 'investigation' passes any known smell test. No matter how you sniff it, it smells of rat.
Some 5 courts and at least 10 judges have looked into this "investigation" and found nothing rat-like about it. But maybe you have a better nose than them (or more facts).
b) Yes, it's much, much easier for the USA to grab him from Sweden than the UK. Once he's there they can 'borrow' him with hardly any legal process.
Ok, after about half an hour of research, I think I've managed to find where the "temporary surrender" thing comes from (sorry, but I don't trust justice4assange.com to be entirely independent and unbiased). It seems to originate with Article VI of the Supplementary convention on extradition between Sweden and the US, signed in 1983, TIAS 10812. Apparently it's too old to be published anywhere official, but there's a copy here.
Article VI states:
If the extradition request is granted in the case of a person who is being prosecuted or is serving a sentence in the territory of the requested State for a different offense, the requested State may:
(a) defer the surrender of the person sought until the conclusion of the proceedings against that person, or the full execution of any punishment that may be or may have been imposed; or
(b) temporarily surrender the person sought to the requesting State for the purpose of prosecution. The person so surrendered shall be kept in custody while in the requesting State and shall be returned to the requested State after the conclusion of the proceedings against that person in accordance with conditions to be determined by mutual agreement of the Contracting States.
Right, so what does this mean? Yes, Sweden can temporarily surrender him to the US for the purpose of prosecution. However, note the first 6 words; "If the extradition request is granted...". I'm not an international lawyer, but to me that means that the US must first apply for extradition, thus jumping through all the various hoops (both in Sweden and the UK, including challenges in courts) before they can even start looking into temporary surrender.
Secondly, there is absolutely no reason why this process (being part of extradition, and an action carried out by the State, i.e. Sweden) wouldn't be subject to the ECHR, in particular, Articles 2, 3, 5, 6, 8, 9, 10, 11, 14 and any others Assange might want to throw at the case. So using "temporary surrender" would actually be *harder* than normal extradition, as there is that extra step on top of everything else.
Thirdly, and the main reason to dismiss nearly all of his claims: if this is a problem, why isn't Assange arguing it in court? If he has, it must have been dismissed by the Court. On this point, we go to the initial extradition ruling, final major paragraph beginning "There was at one stage..." Actually, I might as well just post the whole paragraph here as I seem to be pasting lots anyway... (emphasis mine):
There was at one stage a suggestion that Mr Assange could be extradited to the USA (possibly to Guantanamo Bay or to execution as a traitor). The only live evidence on the point came from the defence witness Mr Alhem who said it couldn’t happen. In the absence of any evidence that Mr Assange risks torture or execution Mr Robertson was right not to pursue this point in closing. It may be worth adding that I do not know if Sweden has an extradition treaty with the United States of America. There has been no evidence regarding this. I would expect that there is such a treaty. If Mr Assange is surrendered to Sweden and a request is made to Sweden for his extradition
I did wonder that myself for a while; it seemed more expensive to fight the point in the Supreme Court than just to get a new EAW from a court but... I'm afraid the answer is "It's not done that way in Sweden." In Sweden, prosecutors are allowed to issue EAWs, and those EAWs are valid under EU law. If you want to know why, I will refer you to Lords Phillips, Walker, Mance, Brown, Dyson, Kerr and Lady Hale, also known as the United Kingdom Supreme Court (while Lady Hale and Lord Mance dissented, they argued that the surrender request wasn't valid under English law, not EU law).
Why won't the police interview him in the UK?
Because they don't want to just interview him (in the sense of just answering some questions). They want to continue their prosecution of him, and the next step of which involves a formal interview, while in custody, followed (if necessary) by charging. Again, that's the way it is done in Sweden. For more legalistic reasoning, I refer you to Sir John Thomas (also known as the President of the Queen's Bench Division of the England and Wales High Court), in his judgment at paragraph 160 (at the end).
You can doubt it if you want, but doubting something doesn't change the reality.
First question: I don't know. And really, I don't care. If the warrant was issued for an improper purpose, one assumes that Assange could have challenged it on that ground (either in the Swedish courts when challenging the original arrest warrant, or in the English courts). Actually, he did. And the arguments were dismissed (see the bits in bold and page 24ish of the initial ruling). However, even if the EAW was issued for an improper purpose (and maybe this is my inner lawyer speaking), that doesn't mitigate the fact that he is accused of some pretty serious offences. I don't think that "just because other accused rapists aren't pursued with the same vigour we should let this one off without a trial" is valid reasoning.
Second question: My understanding is that a US government official (countries tend not to speak) said that when asked directly by a journalist, rather than offering the information itself, however... how many alleged rapists have sought (and obtained) diplomatic asylum in a high-profile situation involving the US?
In that case, it shouldn't be hard for you to state the answers. Like I have been doing. Time and time again over the last few days in these sorts of threads.
The Swedes have travelled to other countries to interview people. Why not Julian Assange?
Because they don't want to just interview him. They want to interview him as part of their prosecution procedure, where the interview is a formal sit-down-and-discuss-things-before-charging thing and (from my limited understanding of Swedish criminal procedural rules) they can't do the latter part outside Sweden, or at least, when he isn't in their custody. In the other cases (I don't have the facts to hand, nor have I read them, but would happily do so), it may be that the interview was pre-arrest warrant, rather than post-arrest warrant as in this case?
Secondly, why should the Swedes deal with him on his terms? He's accused of committing a crime, they have got a valid arrest warrant, and want to arrest him. He's being uncooperative and fighting them at every step (both legally and now illegally). Why should they go out of their way to make it easier on him?
Also, what makes Swedish soil easier for the USians to get at him on than any other soil, particularly English soil?
Slashdot Mirror
I'm still waiting for someone to explain why it is OK to shoot anyone. Sometimes (when it is a question of self-defence; i.e one person is definitely going to die, so it may as well be the person instigating the incident) it might be justifiable, but I'm not sure it should ever be OK...
I'm trying to work out if you're being sarcastic or not... so I will assume not.
What is this world coming to when we want to "invalidate" the findings of a jury? What is the purpose of law and trials and jury if we're just going to "overturn" any ruling that is unpopular?
Juries are inherently unreliable. They introduce huge uncertainties into how rulings will go, they make findings based on whatever they want to, rather than on the facts and the law. They have all sorts of hidden prejudices, they may or may not have expertise in an area (or even worse, may *think* they have expertise).
In this case, we *know* they didn't do their job carefully because the judge had to send the verdict back due to it having at least one glaringly-obvious flaw.
Why did it need to take _days_ for the jury to find in this case? This isn't a murder trial without a murder weapon. Nor is it some complicated manslaughter case involving cell-phone use while driving... or any other type of "grey area" type case with dire consequences of getting it wrong.
But in terms of fact (not law) those cases would be considerably simpler. In the murder trial, the question would be "did the defendant commit the murder, yes or no?" (probably down to 3 or 4 findings of fact). In the manslaughter case, you would probably have even fewer questions (depending on the kind of manslaughter) but they might be more complex ones. But still only a handful of facts to decide on.
Contrast that with this case, where the jury had some 700 questions to decide on, including some pretty technical ones, based on reams of evidence (as to prior art, knowing infringement, validity of patents and so on), so that's not just one conclusion, buy 700 conclusions. In theory, they should be going through each of these questions carefully and thoroughly, considering all the evidence in each case, then moving onto the next separately. That isn't something that can be done quickly. Nor should it be, particularly when the majority of people involved are not experts in the field. Some lawyers following the trial are suggesting that took *them* (experts in some of this stuff) nearly three days just to understand the questions, never mind answering them.
Juries have their place in a legal system; they're there to decide on simple questions of fact, and whether a reasonable person might do something. But there is a reason why there are very few jurisdictions have 'traditional' juries involved in anything but serious criminal cases (iirc Germany doesn't use them at all).
It looks like the US is stuck with juries even in civil law cases due to the 7th amendment (which, rather amusingly, requires juries in common law, civil cases where the value in question is $20 or more...).
I assume that you are supposed to run the algorithm a few times and see which answer comes up most often (about 50% of the time) and assume it is true. The point being that running this algorithm a few times is significantly faster than running the equivalent algorithm on a non-quantum(?) computer (particularly when dealing with huge near-prime numbers), so what you lose in accuracy you make up for in time.
This is the basis for most "quantum" things (such as qubits); you can theoretically encode an infinite amount of stuff in them, but because they work probabilistically rather than Newtonianly (i.e. pre-determined), you have to take an infinite number of measurements to get all the information out. So you're not getting something for nothing, but if you can live with a small level of uncertainty or inaccuracy, then you might be better off taking the "quantum" route.
But I'm not a CS person (although I did do some quantum mechanics stuff a while back, which included looking into the maths behind some quantum computing things).
And the judge ordered injunctions against both of them, banning the iPad and iPhone, and the Galaxies S and Tab.
It's called mutually assured destruction.
Correction: it has been pointed out to me that a woman *can* commit rape in England, but only as part of a joint enterprise; i.e. when the man does the raping and the woman is associated somehow.
By that logic an American living in 1800 should be able to kill her slave.
To be blunt, yes. Legally, they should be able to dispose of their property how they choose.
That's why we make slavery illegal; so all people are people, and not property.
Is a foetus a person? That gets a bit more tricky, as unlike a slave, they're not an independent life form (but then you have to define life form, or "organism" to use the word you did). Does it become a person as soon as it is fertilised (in which case, doing something normal that risks terminating a pregnancy without realising the person is pregnant could be negligent manslaughter)? Or when born? Or when it is reasonably capable of independent life (a question of scientific fact, not politics)?
I don't know about you, but personally I'm happier going with the middle option from a legal point of view, and with the latter from a scientific point of view.
Then we can start asking if animals are people? What about if/when some other species achieves a similar level of awareness to humans? What about aliens (if they exist)?
Things get messy really quickly when you start going down this road. For now, I'll stick with saying that abortion is a tragedy, but should be legal up to the scientific point noted above (or afterwards, when doing so would count as "self-defence" if prosecuted for murder).
I'm pretty much with you right up until the final paragraph; the idea that men cannot be raped (legally true until recently in England - and it's still the case here that a woman (probably) cannot commit rape due to a technicality) is one of those myths that really needs dispelling. However...
I really do believe that it is possible to have a no-fault rape case. Both participants get smashed and fuck like rabbits while out of their minds, and assert they would never have consented to the sex while sober. How does the law react to such a circumstance? Does it punish both victims for their over-indulgences? Who pays child support?
The idea of a "no-fault rape" case seems... a rather terrible idea. It suggests that someone can intentionally have sex with another (or however you define "rape" legally), without a reasonable belief that they are consenting to that sex, but without them being at fault. I fail to see how that can work. If you are intoxicated enough that you don't "intend" to do it, then it isn't legally rape (although I'm not sure English law would be willing to accept that defence, and then you have issues of voluntary intoxication, diminished capacity and so on). If not, you're still committing rape - that is, doing something that is "wrong".
Crimes are generally crimes (rather than torts etc.) because they are viewed as "public wrongs" - things that are so bad, that the state should step in and punish those who do it, no matter who the victim is.
The fact that the other person may also be raping you isn't that important - it would kind of be like arguing that if two people stole from each other (or killed each other), neither committed a crime. The crime is the act done by the accused, not the loss suffered by the "victim".
That said, I don't imagine there are many cases where a mutual rape would occur and be reported, and then there's the issue of whether or not it would be prosecuted. In practice, as noted in your earlier points, I imagine the man (assuming a man and a woman) would find himself accused of rape and trying to find a suitable defence (possibly forced/shamed into pleading guilty).
Actually, your anecdote only proves that one woman lied about rape.
For more general facts; according to the English CPS (not a wholly unbiased source either), about "2% of all reported rapes are false, which is slightly less than false reporting in all other crimes."
While you're there, you might want to read #10 as well, just for future reference (not that I with to suggest you did commit rape; but that the "staying in bed for about 5 hours" may not be as relevant as it sounds). But yes, you were that 1 in 50 rape accusations that was false. But 1 in 50 isn't "most".
In some places (for example, England), the key feature is the lack of consent (and the lack of a reasonable belief in consent) rather than "force". So the threat of force (express or implied) would count, but also a lack of capacity to consent (such as being intoxicated or asleep), or some sort of deception. [If you want to see a really weird, disturbing, but unforced case of rape, look up R v Jheeta.]
Of course, this still has problems; for example, you could have a situation where two people raped each other, if they were both deceiving each other as to some material point. As far as I know, that's never come up in court, though.
1. At the moment, this is still an extradition (or more technically, "surrender") process. That means they're just looking to see if there is a case at first glance. At first glance there is evidence of a lack of consent (or more importantly, a lack of reasonable belief in consent), and that is enough. There may be evidence to refute that (although technically, actions after a alleged crime aren't directly relevant to it - what matters is whether there was consent at the actual time), but that is a matter for the trial, when evidence can be presented, witnesses called and cross-examined (and where the facts can be argued rationally and clearly, rather than an arguments based on guesses and speculation that we've seen in the media etc.).
2. Again (re 3) above) that's odd. But I'm not sure why (and clearly neither are the various courts) that should stop the process before the trial has begun. That is something to be discussed at trial when it comes to admissibility of evidence and whatnot?
Yet again we have the whole "he'll get black bagged straight away" argument. Yes. Maybe the Swedish government will blatantly and very publicly break national, European and international law. But then maybe the UK government will do the same and will illegally kidnap him from the Ecuadorian embassy (or maybe they would have just sent him to Sweden without a hearing here). Or maybe the US will do that and just grab him from the Ecuadorian embassy... or maybe they could have just grabbed him from the UK when he was under house arrest, or Sweden back when he was there when this all started. Or they could have just shot him when on the balcony on Sunday. Or Sweden could do that and just grab him from the UK rather than going through the EAW process.
If governments are willing to break the law, there's really not much you can do to stop them; all evidence so far suggests that both the UK and Swedish governments are willing to stick to the law. The US isn't even officially involved yet.
The whole "Assange will just be extradited before his trial" thing is flawed because it is based on the assumption that the Swedish government, with half the world's media watching, will openly and blatantly break national, European and international law.
In the case of the two Egyptians, it seems to have taken 3 years for the national media to pick it up, 6 years for a lawsuit to be filed (in the US) and another year for the case in Sweden to be settled. Secrecy and the lack of public interest isn't going to protect the Swedish government.
On the subject of prevention, the problem with that is that it is still a proportionality argument. Otherwise we would never arrest anyone, because there's always a chance they might face inhuman and degrading treatment. However, it is an argument, it can be made in courts, including in extradition cases (a UK->Argentina extradition was refused earlier this year on Article 3 grounds). But Assange hasn't made it. He hasn't brought it up, he hasn't provided any evidence, he hasn't argued it.
IF the US try to extradite him, then he will be able to raise those arguments firstly in the Swedish Supreme Court, and then in the English courts if the UK government approves extradition. Then he may still be able to appeal to the ECHR. If the Swedes extradite him before that process is completed, they will probably (if he has semi-decent lawyers) have broken the law, and we're back to point 1 above.
The extradition of Assange to the US will be completely legal, of course. The US will undertake not to give him the death penalty.
So now we're back to assuming the Swedes actually follow the law. But we assume the US gives assurance (about not using the death penalty, not torturing him, giving him a fair trial etc.) but are willing to break them (which raises the question of why, if he's sure they can't be trusted, Assange is using a lack of assurances as an excuse). Yes, they could do this (assuming that the Swedish and UK courts accept the arguments). But it would be a one-time-only option. They would never be able to extradite someone from the EU again because any future assurances would be worthless. Somehow, I don't think that the US authorities hate Assange quite that much.
[The comment about the assassination of Lindh meant that she was 'blamed' for everything, but it wasn't possible to bring a case or action against her due to her being dead. Hence the lack of political or legal consequences to the perpetrators. My point would be that that is unlikely to work with Assange, rather than that it couldn't happen because the main person responsible (and the entire government) is no longer in power.]
The main problem I have with all of these arguments is they end up coming down to one government or another openly disregarding national, European and/or international laws. If they really hate Assange that much, why not just take him when he was under mansion arrest? Or drag him from the Ecuadorian embassy (without going through a full legal process first)? Or just shoot him? Because there will be consequences. That's how the law works. It doesn't stop bad things happening - it can't. But it tries to stop people from doing bad things by imposing consequences/
It took you half an hour to find the link on that page I gave you? Hint: It's in the first paragraph of the section called "Temporary surrender".
Ok, I completely missed that... I could justify it by claiming I wanted an unbiased view, or whatever, but I just got bored and stopped reading the article when I read the "bilateral agreement" part, and decided to research it for myself. [For some reason, I find the layout of that site rather confusing and unhelpful.] Still, encouraging that I managed to find the right thing on my own, without going through any Assange-specific pages (it was an interesting path, going through the EU-US treaty as well, a few other things).
But... my point still stands. That only applies *after* the extradition request is granted. It is an extra step on top of normal extradition, rather than some short-cut. Assange's argument on that point would seem to be nonsense.
Do you really not believe that somebody, somewhere badly wants Assange in Sweden?
To the first, someone probably does want him. From what I've read, it's probably the Swedish prosecutor who is trying to make a name for herself on the back of a high-profile rape case (i.e. it is personal politics, rather than US pressure). But again, the Swedish and English courts have examined this, and found nothing improper.
Why aren't the USA trying to extradite him from the UK?
Maybe because the US don't actually want him?
Why has the USA stepped up its diplomatic relations with Sweden recently (eg. Hillary Clinton's visit)?
Ah, so now visiting Sweden is part of a conspiracy?
Why are the Swedish courts stonewalling Assange when he tries to communicate with them?
I thought it was the prosecutors running this, not the court? And that they had filed an EAW, and it had been Assange trying everything he could to not comply. Or are we reading different stories?
Oh, he has. He's tried every known method of communication with the Swedish legal system.
I was referring more to the English courts, where this issue was very briefly discussed (at the initial hearing) but Assange made no arguments and presented no evidence (not even presenting this treaty). You'd think that if it were a smoking gun, it would be at the top of his submissions, but it was an afterthought. As for the Swedish legal system, I understand he appealed the initial arrest warrant to the Court of Appeal there, which found nothing invalid with it - other than that, I don't see what legal steps he should be able to take; there's an arrest warrant (which he challenged), next comes a trial... but he's still avoiding that.
Nope. The court's only words so far have been, "Come to Sweden...come to Sweden..."
If you have a copy of the Swedish courts' judgments (whether saying that or not), I'll happily read them as well...
Re ECHR and Agiza and Alzery... yes, they could have challenged their rendition. Except they didn't need to go to the ECHR. From the article you linked: "In July 2008, and September 19, 2008 they were each awarded 3 million SEK ($380,000) in damages in a settlement with the Swedish ministry of justice."
The then Swedish government acted illegally, although it seems the minister involved was assassinated before a full investigation could happen, but it seems unlikely they would be able to get away with that again. Also worth noting that that was two (kind of three) governments ago.
This event happened in late 2001, at the height of the initial anti-terrorist scare (and before certain legislation - at least in the UK, and treaties elsewhere that would restrict it). Following this, and other cases, various legal authorities, including within the EU and CoE have come down firmly against this sort of thing and, while I cannot guarantee it, one hopes that it will not happen again. At least, within the EU.
The main difference with Assange is that he is far more high-profile. If the Swedish government did try to do this (illegally), I imagine there would be pretty serious repercussions, pretty quickly.
As for damages being insufficient - some times bad things happen, and are impossible to undo. That's what damages are for; to try to compensate.
On the subject of Bradley Manning - was he extradite from Iraq, or did he never leave US custody/control? But certainly his treatment would be illegal in the CoE states. And his case represents strong evidence Assange could use if the US ever tried to extradite him (from the UK or Sweden). That is, assuming he can find any lawyers still willing to represent him...
You're missing the sentence after that: "There has been no evidence regarding this."
Then re-read the final paragraph of my post.
If you're worried about something, think it has a major issue, and have evidence to back that up, generally you try to present that at your hearing... if you don't present it, then it seems either you're not actually worried about it, it's not a major issue, or you have no evidence.
Based on what I've seen, he was charged, then the charges dismissed and he was free to go. Then, apparently Sweden doesn't have a concept of double jeopardy (most places don't restrict it nearly as much as the US does), he was charged again for the same thing, but only after consultation with the US.
No. The timeline is a bit fuzzy, but it seems an investigation was started, then stopped by a more senior prosecutor, then started up by an even more senior one. Double jeopardy isn't an issue, as it is different decisions being made as the case goes up the chain of command (possibly as more experienced people read the case, or more evidence came in) - he wasn't charged or tried with the same thing twice.
There doesn't seem to be any evidence for US pressure at that point. If anything, it seems the senior prosecutor may have pushed the investigation onwards for her own personal political reasons (a high-profile rape case for a public prosecutor campaigning on being tough against alleged rapists?), but the investigation has been challenged legally (I think on that point, if there is evidence for it) and found to be a bit unusual, but valid.
Why have they refused to interview him remotely, as they have done before?
Why shouldn't they? They don't want to just question him, but formally interview him, in custody, as part of the charging process. In Sweden, that's done after arrest in most cases, especially for those accused of rape. If you can find one case where they've done this remotely, with someone in the EU, who is accused of rape, then this might be a serious point.
What is happening is that America (and most Americans) don't want the U.S. government to be subordinated below some global government. We've already seen what happens when sovereignty is surrendered to a more universal government, and for the most part we don't want to see that happen again. Once was enough and even then that universal government has likely gone too far.
As a European, I wonder if the trick to this is partial surrender of some powers to various different governments. Here in the UK, we have a UK government controlled (in theory - in practice it is the other way around) by a sovereign Parliament which (in theory) has absolute power. Except it passed a law making it part of the EU, and thus subservient to the EU, meaning the EU has absolute power. Except the UK Parliament can undo that law at any time... Oh, and then there's the Council of Europe. In theory, the European Court of Human Rights (run by the CoE) trumps both the UK Parliament and the EU. Except it needs the national governments' co-operation to enforce its rulings, and if they say no, there's not much the ECHR can do.
By separating the powers between the three blocks, you can obtain some level of balance, whereby no one part has complete control, each being held in check by the others (much like the traditional concept of separation of powers, but splitting power based on competence, rather than function). In this case, the EU has competence over mainly economic, and trade issues, expanding into business-type regulations, consumer protection; those sorts of fiddly, unglamorous things. The ECHR covers the fundamental rights stuff, protecting the really basic freedoms and the really big things. The national Parliaments fill in the gaps, and implement stuff.
Personally, I think it works quite well. But I may be in the minority.
Interviewing abroad: They have done this before, even with people suspected of murder. And when a prosecutor got an arrest warrant against a suspected tax evader resident in Dubai, the Swedish supreme court reversed this as disproportional because the person was available for interview in Dubai and merely didn't want to travel to Sweden.
But that's a proportionality argument, so is likely to be very fact-dependent. In Assange's case, he has no real ties to the UK, he doesn't live here, he clearly has no trouble travelling between the UK and Sweden and, unlike Dubai, the UK is in the EU, so the whole "mutual recognition of judicial authorities" stuff comes into play, and it is "surrender" rather than "extradition" and so on... Proportionality on this issue was raised in the English courts, but dismissed.
As for ease of extradition, even if they're political decisions in Sweden, they should still be protected by the ECHR and so challengable in court. If not, the UK government must also give approval and that is definitely subject to judicial review. As for the UK government's willingness to do so, despite what you may have read, while the government does have a say in extraditions (to the US), they have very few grounds on which they can refuse extradition, and doing so for political reasons would be illegal. That doesn't mean it wouldn't happen, but they'd have to be very careful about it.
From what I understand, the maximum penalty he could receive is less than the time he already served "in custody" in the UK, plus a rather small fine, relatively speaking.
I think that's one of those myth-things. From what *I* understand the maximum penalty is 4 years in prison. Plus I'm not sure whether his time under house arrest would count towards that, or just his time actually in prison (a few days way back at the start of all of this).
He *is* wanted for trial (which is partly why questioning him in the UK isn't good enough). That's a translation/different legal system issue. Under Swedish law, the interview-thing is the next step in the on-going prosecution and is immediately followed (if necessary) by charging, then (within 2 weeks) a trial. The High Court found that had he been wanted by the UK, he would have been charged ages ago; it's just a procedural difference between jurisdictions.
They have in the past interviewed abroad a murder suspect and someone suspected of tax evasion, so it isn't a question of them wanting due diligence for the sake of the accusers in this case.
Do you have more details on these cases? Was there any factor in particular (such as the host country not being subject to the EAW process or a simple extradition treaty) that caused it?
A bit of digging suggests that they *can* charge someone (or try them, the two seem to be necessarily and strongly connected in Swedish law, unlike in English law), however it is reserved for cases where it is impossible or impractical to access the defendant. That obviously isn't (or rather, wasn't) the case here, as Assange surrendered himself to the UK police and then was held under house arrest, and was therefore easily accessible via an EAW (in theory). It may be that the Swedish authorities now charge him in absentia due to him absconding, although I imagine then we'll just get all the "denied a fair trial" arguments from the Assange supporters...
a) Nothing about this 'investigation' passes any known smell test. No matter how you sniff it, it smells of rat.
Some 5 courts and at least 10 judges have looked into this "investigation" and found nothing rat-like about it. But maybe you have a better nose than them (or more facts).
b) Yes, it's much, much easier for the USA to grab him from Sweden than the UK. Once he's there they can 'borrow' him with hardly any legal process.
Ok, after about half an hour of research, I think I've managed to find where the "temporary surrender" thing comes from (sorry, but I don't trust justice4assange.com to be entirely independent and unbiased). It seems to originate with Article VI of the Supplementary convention on extradition between Sweden and the US, signed in 1983, TIAS 10812. Apparently it's too old to be published anywhere official, but there's a copy here.
Article VI states:
Right, so what does this mean? Yes, Sweden can temporarily surrender him to the US for the purpose of prosecution. However, note the first 6 words; "If the extradition request is granted...". I'm not an international lawyer, but to me that means that the US must first apply for extradition, thus jumping through all the various hoops (both in Sweden and the UK, including challenges in courts) before they can even start looking into temporary surrender.
Secondly, there is absolutely no reason why this process (being part of extradition, and an action carried out by the State, i.e. Sweden) wouldn't be subject to the ECHR, in particular, Articles 2, 3, 5, 6, 8, 9, 10, 11, 14 and any others Assange might want to throw at the case. So using "temporary surrender" would actually be *harder* than normal extradition, as there is that extra step on top of everything else.
Thirdly, and the main reason to dismiss nearly all of his claims: if this is a problem, why isn't Assange arguing it in court? If he has, it must have been dismissed by the Court. On this point, we go to the initial extradition ruling, final major paragraph beginning "There was at one stage ..." Actually, I might as well just post the whole paragraph here as I seem to be pasting lots anyway... (emphasis mine):
I did wonder that myself for a while; it seemed more expensive to fight the point in the Supreme Court than just to get a new EAW from a court but... I'm afraid the answer is "It's not done that way in Sweden." In Sweden, prosecutors are allowed to issue EAWs, and those EAWs are valid under EU law. If you want to know why, I will refer you to Lords Phillips, Walker, Mance, Brown, Dyson, Kerr and Lady Hale, also known as the United Kingdom Supreme Court (while Lady Hale and Lord Mance dissented, they argued that the surrender request wasn't valid under English law, not EU law).
Because they don't want to just interview him (in the sense of just answering some questions). They want to continue their prosecution of him, and the next step of which involves a formal interview, while in custody, followed (if necessary) by charging. Again, that's the way it is done in Sweden. For more legalistic reasoning, I refer you to Sir John Thomas (also known as the President of the Queen's Bench Division of the England and Wales High Court), in his judgment at paragraph 160 (at the end).
You can doubt it if you want, but doubting something doesn't change the reality.
First question: I don't know. And really, I don't care. If the warrant was issued for an improper purpose, one assumes that Assange could have challenged it on that ground (either in the Swedish courts when challenging the original arrest warrant, or in the English courts). Actually, he did. And the arguments were dismissed (see the bits in bold and page 24ish of the initial ruling). However, even if the EAW was issued for an improper purpose (and maybe this is my inner lawyer speaking), that doesn't mitigate the fact that he is accused of some pretty serious offences. I don't think that "just because other accused rapists aren't pursued with the same vigour we should let this one off without a trial" is valid reasoning.
Second question: My understanding is that a US government official (countries tend not to speak) said that when asked directly by a journalist, rather than offering the information itself, however... how many alleged rapists have sought (and obtained) diplomatic asylum in a high-profile situation involving the US?
In that case, it shouldn't be hard for you to state the answers. Like I have been doing. Time and time again over the last few days in these sorts of threads.
The Swedes have travelled to other countries to interview people. Why not Julian Assange?
Because they don't want to just interview him. They want to interview him as part of their prosecution procedure, where the interview is a formal sit-down-and-discuss-things-before-charging thing and (from my limited understanding of Swedish criminal procedural rules) they can't do the latter part outside Sweden, or at least, when he isn't in their custody. In the other cases (I don't have the facts to hand, nor have I read them, but would happily do so), it may be that the interview was pre-arrest warrant, rather than post-arrest warrant as in this case?
Secondly, why should the Swedes deal with him on his terms? He's accused of committing a crime, they have got a valid arrest warrant, and want to arrest him. He's being uncooperative and fighting them at every step (both legally and now illegally). Why should they go out of their way to make it easier on him?
Also, what makes Swedish soil easier for the USians to get at him on than any other soil, particularly English soil?