> the principle of proportionality
> the principle of proportionality
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.
The Al Capone case is ultimately a failure in rule of law, of sorts. If he was indeed the gangster that Al Capone the pop character was, the police failed to catch and prosecute him for those crimes. In light of that failure, they basically abused laws (and maximum sentences) to convict him for a different crime.
We are open to that sort of abuse so long as prosecutors and police have big discretionary powers. If the average jail term for crime X is 1 year on parole, but the maximum sentence is 10 years in prison and the prosecutor plays a big role in determining which one it will be… that's open to abuse. If a prosecutor really wants you but can't prove your guilt, she can get you for something small and push for an oversized sentence. This basically bypasses the rule of law.
In any case, I don't think the Al Capone investigation would have violated the proportionality principle. He was being investigated (I assume) for murder, racketeering and the like. That merits a big investigation. It failed, but it wasn't disproportionate. The only thing that was disproportionate was the sentence relative to the (proven) crime. Maybe the scale of the prosecution itself too. Police were investigating a major criminal. That investigation should be (and will be) well resourced.
> This is a strange case. Assange is accused of "non-
> consensual behaviour within consensual sexual
> encounters." This crime/law unique to Sweden
http://jackofkent.com/2012/06/assange-would-the-rape-allegat...
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.
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.
So if someone leaves Sweden for (more than?) the length of their sentence, that is comparable to carrying out their sentence?
- 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- 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.
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.
All criminal cases in non-corrupt courts in the West have a presumption of innocence.
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?
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.
No, you declare that without any concrete evidence, there is no way to have a fair trial, and thus it is a waste to pursue the case. If some new form of evidence comes up, it gets written into law about its statute of limitations, and if the cold case is now within the statute of limitations, the new form of evidence can be used (but there cannot be any witness testimony or other evidence that is considered past the statute of limitations).
As it currently stands, we place far too much weight on eyewitness testimony years after the fact that results in innocent people going to prison.
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".