Friday, 5 February 2016

Julian Assange ~ Arbitrary Detention ~ the UN Working Group decision



Julian Assange (see his Wikipedia entry) has been in the Ecuadorean Embassy in London since June 2012 - previous post 16th August 2012.  He entered the embassy following the 30th May 2012 decision of the Supreme Court.  He was granted political asylum by Ecuador.  The United Kingdom does not recognise that form of asylum - (please see Asylum - some notes).  Mr Assange was "wanted" on a European Arrest Warrant issued by Sweden and it seems that he is very concerned that, if the warrant is executed, he will be sent to Sweden and then onwards to the United States.  Assange has not received any guarantee from Sweden that he would not be sent to the USA and it is arguable that his fear of persecution is well-founded in the light of the USA's treatment of certain others including Bradley Manning who received 35 years imprisonment in connection with Wikileaks.  [Further difficult questions may arise IF Assange were to be extradited to Sweden and the USA were then to request his extradition.  These are not considered further here].

The United Nations High Commissioner for Human Rights has a Working Group on Arbitrary Detention.  The working group was established by resolution of the Commission - see this Fact Sheet.  It has five members (details here) and its mandate currently runs until September 2016.  4 of the 5 members took part in this decision.

The group has been examining Mr Assange's situation and has concluded that he has been arbitrarily detained  - Read the decision.  The Foreign and Commonwealth Office has announced that it will formally challenge the decision - Press Release 5th February.


The decision merits a complete reading and there is a dissent by one member of the working group (Mr Tochilovsky of the Ukraine).  It seems that much of the working group's information came from what is referred to as "the source."  Let's look rather more closely at the decision and see whether it is as absurd as it may appear to be at first sight.

The decision would not be binding on any English courts though it is possible to refer to such decisions in court proceedings as occurred in the final session in the Supreme Court hearing of Mohammed v Ministry of Defence and Al-Waheed v Ministry of Defence.  Whether the decision places any obligation on the British government is not examined further in this post.

Categories of detention which may be arbitrary:

The Working Group applies five categories for deciding what amounts to arbitrary detention and these are set out in paragraph 3 of the decision - (3a to 3e).

Category III is stated to be (see para 3.c):  "When the total or partial non-observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character."

[It is of interest to note that the UDHR and the ICCPR use the word "arbitrary" but it is not used in the European Convention on Human Rights (ECHR).  Art 5 ECHR refers to deprivation of liberty and sets out a list of 5 situations where this may be lawful.  The UK is a party to the ICCPR].  

The majority Decision and the dissent:

The majority view was:

"The deprivation of liberty of Mr. Assange is arbitrary and in contravention of articles 9 and 10 of the Universal Declaration of Human Rights and articles 7, 9(1), 9(3), 9(4), 10 and 14 of the International Covenant on Civil and Political Rights. It falls within category III of the categories applicable to the consideration of the cases submitted to the Working Group."

The dissenting opinion (Appendix I to the report) states that (paras. 2 and 3):

2.   It is assumed in the Opinion that Mr. Assange has been detained in the Embassy of Ecuador in London by the authorities of the United Kingdom. In particular, it is stated that his stay in the Embassy constitutes “a state of an arbitrary deprivation of liberty.”
3.     In fact, Mr. Assange fled the bail in June 2012 and since then stays at the premises of the Embassy using them as a safe haven to evade arrest. Indeed, fugitives are often self-confined within the places where they evade arrest and detention. This could be some premises, as in Mr. Assange’s situation, or the territory of the State that does not recognise the arrest warrant. However, these territories and premises of self-confinement cannot be considered as places of detention for the purposes of the mandate of the Working Group.
  

The periods of time when detention was viewed as arbitrary:

The decision notes that:   Mr. Assange has not been guaranteed the international norms of due process and the guarantees to a fair trial during three different moments: the detention in isolation in Wandsworth Prison, the 550 days under house arrest, and the continuation of the deprivation of liberty in the Embassy of the Republic of Ecuador in London, United Kingdom.

Law in England has changed since Supreme Court hearing in 2012

Supreme Court's judgment 2012

An interesting argument is advanced by the report at para 69 of the decision and the footnote to page 11 together with paras 77 and 78 where recent amendments to the law in the UK are noted and it is said in effect that Assange's case was not subjected to a review in the light of the now amended law.  

At para 98 the report states:

"With regard to the legality of the EAW, since the final decision of the Supreme  Court of the United Kingdom in Mr. Assange’s case, UK domestic law on the determinative issues had been drastically changed, including as a result of perceived abuses raised by Sweden’s EAW, so that if requested, Mr. Assange’s extradition would not have been permitted by the UK. Nevertheless, the Government of the United Kingdom has stated in relation to Mr. Assange that these changes are “not retrospective” and so may not benefit him. A position is maintained in which his confinement within the Ecuadorian Embassy is likely to continue indefinitely. The corrective UK legislation addressed the court’s inability to conduct a proportionality assessment of the Swedish prosecutor’s international arrest warrant (corrected by s. 157 of the Anti-Social Behaviour, Crime and Policing Act 2014, in force since July 2014). The corrective legislation also barred extradition where no decision to bring a person to trial had been made (s. 156)."

The amendments to Extradition Law made by the 2014 Act arose from a review of the Act by Sir Scott Baker (published 18th October 2011).  At that time, the government was considering an opt-out from certain police and criminal justice measures adopted before the Lisbon Treaty came into force.  In 2013, the Home Secretary announced the Government’s intention to bring forward a number of additional changes to Part 1 of the Extradition Act 2003, including changes on the issues of proportionality, pre-trial detention and dual criminality. The provisions in Part 12 gave effect to these change.

The amendments to the Extradition Act 2003 as introduced by the 2014 Act did not apply retrospectively to Mr Assange's case since it was fully decided by the English courts before the amendments came into force on 21st July 2014.  The wording of the amendments to the law supports that view. 

It is interesting to speculate as to what the outcome might be if the extradition request from Sweden had just arrived in the UK - see The Extradition Act law reform that could - but won't - help Assange.  It may be that the amended law would result in the EAW being successfully challenged in the English courts - e.g. on the ground that Sweden had not yet reached a decision to charge (new section 12A) or on grounds of proportionality given that questioning of Assange might be possible by other means such as video link (new section 21A).. 

Was any further legal challenge possible?

Could Assange have sought permission from the High Court to bring a further challenge to the EAW on the basis that the UK authorities were somehow breaching his rights under Article 5 of the European Convention on Human Rights?  Maybe, but he has not done so.  He would have had to set out his reasoning as to why his convention rights were allegedly being breached.  Given that he had breached his bail and gone to the embassy to seek "asylum" he may well have encountered serious difficulty with such an application.

Discussion:

On no ordinary view of "detained" had Mr Assange been detained other than when he was in Wandsworth in what is described as "isolation" from 7th to 16th December 2010 (see para 86 of the report).  The report states that there is arbitrariness inherent in this form of detention if the individual is left outside the cloak of protection, including access to legal assistance.  However, there is nothing in the report to indicate that Mr Assange could not (or did not) have access to lawyers during that time.  On the contrary, it is clear enough that he has had access to ample legal representation throughout.

Regarding the decision's use of the term "house arrest", we know that Mr Assange was granted bail (by the High Court) and that it included a residence condition.  Such conditions are far from uncommon in bail decisions and, in the Assange case, it would seem to be an eminently sensible and necessary condition to attach.  Even if it is accepted that bail with onerous conditions is a "loss of liberty" (it certainly is a restriction on liberty), it is not "arbitrary" given the judicial safeguards involved in fixing the bail conditions.

As for him being "detained" in the embassy, it was obvious that the British authorities did not place him there.  He chose it for himself.  Having gone there, it is true that the Police presence was very large - (cost around £10m to date) - and it is also said that Mr Assange has been under surveillance all the time during his stay at the embassy (para 88).

The surveillance is variously described in the decision as "constant", "extremely intrusive", "invasive" or "highly intrusive" and para. 53 refers to the Police attempting to "surveil his visitors and activities both physically and electronically." The decision gives no further detail about surveillance other that the obvious fact of a Police presence outside the embassy.  Surveillance techniques can vary enormously and could (I am not saying did) involve listening devices etc. but an embassy is supposed to be inviolable.  It is a pity that the decision fails to give such further details.

There is also no doubt that had Mr Assange left the embassy, he would have been arrested by the officers waiting outside.

Whilst there are some features of concern about this case, the working group's principal decision is not supportable because Mr Assange has, quite simply, NOT been arbitrarily detained by the UK authorities.  His liberty has not been arbitrarily restricted.  At the relevant times he had full access to lawyers and the courts and, even though he is in the embassy, he could issue further proceedings in the English courts.

For an argument more supportive of the Working Group decision see Liora Lazarus (Associate Professor of Law, Oxford) at the Constitutional Law Blog.

Other links:

EU Law Analysis

The Head of Legal blog concludes that the Working Group decision is "ridiculous"

The Extradition Act law reform that could - but won't - help Assange.



L. Lazarus, ‘Is the United Nations Working Group on Arbitrary Detention Decision on Assange ‘So Wrong’?’ U.K. Const. L. Blog (9th Feb 2016) (available at https://ukconstitutionallaw.org/)
 

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