Julian Assange was accused by two women of rape but has not been charged because the prosecutor says she is unable to interview him about the allegations. Photograph: FACUNDO ARRIZABALAGA/EPA
Julian Assange is taking his appeal to Sweden’s highest court in a final attempt to persuade a Swedish judge that the arrest warrant against him should be lifted.
His lawyers will ask Sweden’s supreme court on Wednesday to agree that the “severe limitations” on Assange’s freedoms since he claimed asylum in the Ecuadorian embassy in London in 2012 to escape extradition to Sweden are unreasonable and disproportionate to the case.
In August 2010, the WikiLeaks founder and campaigning journalist was accused by two women of rape and sexual molestation, but he has not been charged because the prosecutor insists she is unable to interview him about the allegations.
Prosecutor Marianne Ny has declined invitations by Assange to do so in London, where he has taken refuge in the embassy to avoid a perceived threat of extradition to the US for publishing military secrets. Assange denies all the charges.
In November, Stockholm’s appeal court rejected Assange’s case, saying there was a risk he would evade legal proceedings should the detention order be lifted. The court also ruled that his confinement to the embassy was voluntary.
However, in the ruling, senior appeal court judge Nicklas Wågnert noted the deadlock in the case and criticised the prosecution for failing to move the investigation forward.
“That is a heavy obligation on the prosecutor,” Judge Wågnert told the Guardian after the ruling. “If Assange challenges the detention order again [in the supreme court], I believe the court will consider what measures the prosecutor has taken to move the preliminary investigation forward in between now and the next challenge.”
A spokesperson for the prosecutor said she would “not give details” about the investigation, and Per Samuelson, one of Assange’s Stockholm lawyers, said he had heard nothing about any movement.
Swedish legal opinion at a senior level has swung against the prosecutor’s decision not to travel to London to interview Assange, with Anne Ramberg, head of the Bar Association, calling the current impasse a “circus”.
“It would of course after such a long time be sensible for the prosecutor to determine whether to prosecute,” she said. “The Assange story has become a less than flattering adventure not only for the English courts’ handling of the case, but also for the Swedish prosecutor.”
Stefan Lindskog, the president of the supreme court, told the Guardian he had faced criticism for being “too outspoken” when in 2013 he described the case as “a mess” and called for it to be “solved practically”.
“Two courts have held that there is a probable cause [for prosecution] as regards sexual molestation, but probable cause is a lower standard than beyond reasonable doubt,” Lindskog said in a speech in Adelaide, Australia, in April 2013.
Judge Lindskog said he had left the case behind him and declined to comment further.
In October, the British Foreign Office said it would welcome a request by the Swedish prosecutor to question Assange inside the Ecuadorian embassy and would be happy to facilitate such a move.
Claes Borgström, a lawyer for one of the women in the case, told the Guardian he believed the prosecutor had “some material in the investigation that so far nobody knows about except for her”, which might explain her refusal to interview Assange in London. Samuelson said these were “empty words” – “I know there is no hard evidence against Julian Assange.”
After the supreme court later on Wednesday receives the arguments from Assange’s lawyers, it must decide whether to grant their request for the appeal to be heard. While it is not essential for the court to request a response from the prosecutor, it has the powers to do so, said Charlotte Edvardsson, a registrar at the supreme court. It has not yet been decided which judges will decide on the appeal, Edvardsson said. It is likely that the court will find it sufficient to issue a written ruling rather than hold a public hearing.
Samuelson said defence lawyers had widened and deepened their arguments against the arrest warrant. “We have gone into greater detail on judgments and protocols of the European court of human rights, deepening our investigation beyond the boundaries of Swedish law and taken it much more into European law,” he said.
If they lose the case in Sweden, Assange’s lawyers are looking to appeal to the European court, where they say legal thinking on detention “speaks strongly” in their favour. Sweden’s interpretation that Assange is not deprived of his liberty appears to be at odds with ECHR jurisprudence, said Jennifer Robinson, an Australian lawyer for Assange.
In January, Sweden agreed at the United Nations to a request by Ecuador to consider taking “measures to limit the time of pretrial detention or the equivalent situation of deprivation of liberty without charges and for investigation purposes”. Assange says that his asylum in the Ecuadorian
embassy amounts to deprivation of liberty under Article 5 of the European convention on human rights.
Sweden also agreed to a request by Argentina to consider measures to ensure that a guarantee forbidding the rendering of a victim of persecution to their persecutor can be given to “any person under the control of the Swedish authorities while considered a refugee by a third country”. Assange has requested a guarantee from the Swedish state that he would not be extradited to the US should he agree to be questioned in Sweden.
Anders Rönquist, Sweden’s director-general for legal affairs, said he believed that these requests were inspired by the Assange case, and noted that Sweden had until 15 June “to think about it”. However, there was “no general obligation under international law to recognise diplomatic asylum”, he added.