Feb. 4 (Bloomberg) -- Julian Assange, founder of the anti-secrecy website WikiLeaks, can avoid extradition from Britain to face questioning in a rape case if he proves Swedish authorities misused an international arrest warrant, lawyers say.
The process used to detain Assange in Britain is reserved for cases where prosecutors have already decided to charge someone, said Peter Watson, a lawyer with Allen & Overy LLP in London. Assange, 39, will challenge the warrant at the first “substantive” hearing in the case in a London court Feb. 7.
“If they really want to interview him, and there was no decision to charge him, then they shouldn’t have used the arrest warrant,” Watson said in a telephone interview. “It’s a serious challenge which is being mounted by Assange; it’s not window dressing in my view.”
Assange turned himself in to London police in December after Sweden issued a so-called European arrest warrant. The claims of sexual misconduct were revealed as WikiLeaks, which publishes leaked documents on its website, drew condemnation for posting thousands of classified U.S. military and diplomatic communications.
Assange, an Australian, will appear in court for the first review of the extradition request following bail hearings and appeals in December, said his lawyer Mark Stephens. Sweden is represented in the case by U.K. prosecutors who unsuccessfully challenged Assange’s bid for bail.
Not a Fugitive
“It’s improper to use the European arrest warrant for questioning,” Stephens said in a phone interview. “They’re only used when someone is a fugitive from justice or the person has been charged and they’re wanted for a trial.”
Stephens, who regularly represents media organizations including Bloomberg News, said Assange repeatedly offered to be interviewed by authorities when he was in Sweden and that they could have interviewed him without an arrest. He also says prosecutors haven’t shared their evidence with him.
“We haven’t seen their argument,” Stephens said. “The goal posts are moving, but quite where they’re going we don’t know; that’s part of their tactic.”
The Swedish warrant covers one count of unlawful coercion, two counts of sexual molestation and one count of rape, including claims that Assange in August failed to use a condom during sex after being asked to do so. In a separate incident, he is accused of engaging in sex while another woman was asleep.
Assange, who denies the claims and says the women compared stories before going to police, can appeal if Sweden’s extradition request is granted -- a process that lawyers say could take several months.
Karin Rosander, a spokeswoman at the Swedish Prosecutor’s Office, says Assange doesn’t have to be formally charged to be extradited.
“The fact that we have issued a European arrest warrant is sufficient” to request extradition “or else we wouldn’t have done it,” Rosander said in an interview.
Such warrants are difficult to fight, and Sweden may have given Assange a rare defense by seeking to detain him in the U.K. before charges were filed, perhaps because they were under pressure from the U.S., said Neill Blundell, a lawyer who leads the fraud practice at Eversheds LLP in London.
U.S. Attorney General Eric Holder said in November that the Justice Department is investigating WikiLeaks, and lawyers who aren’t involved in the case have said the U.S. may charge Assange with espionage. The organization’s postings include video of a July 2007 U.S. military helicopter attack in Iraq that killed a Reuters television cameraman and his driver.
“If it’s likely that the Swedish authorities acted in haste when they did, then that might explain why they haven’t been in a position to confirm they’re going to charge him,” Blundell said in a telephone interview.
The defense can be paired with other claims by Assange’s legal team over the fact they haven’t turned over any evidence and that Sweden failed to outline how the alleged offenses would have been illegal in the U.K., a requirement under the extradition, he said.
Stephens will also argue the extradition sought by prosecutor Marianne Ny is invalid because only the Swedish National Police Board has the power to request a European Arrest Warrant in the country, according to an outline of arguments that were published on his lawyer’s website.
‘Hard to Fight’
“It’s always very hard to fight extradition on one of these European arrest warrants,” said Dan Hyde, a lawyer with Cubism Law. Taking Assange’s defense “at face value, it does seem to raise a number of forceful arguments,” he said.
The Swedes could complicate things for Assange by telling the judge they are now ready to charge him, Blundell said.
Stephens also plans to argue that extraditing Assange to Sweden will put him in jeopardy because he could be sent to the U.S. where he might face the death penalty. Stephens said prosecutors refused to promise Assange wouldn’t be extradited to the U.S. if the Scandinavian country wins its case.
Despite Assange’s lawyers focus on the global impact of the case and what it could mean for WikiLeaks and the U.S. government, the lawyers say the ruling could hinge on how the judge interprets extradition law.
“In my view, there isn’t an ability to extradite someone for simple questioning,” said Blundell of Eversheds. “For sexual assault cases, you either have enough evidence or you don’t.”
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