CONTENTS: 1.Summary; 2.The UN WGAD; 3.Comments from Panel Members; 4.Analysis of Findings (Due Process; What is ‘Arbitrary?’; The Arbitrary EAW; Deprivation of Liberty; Asylum; Other Matters Inimical to Justice; Remedies & Results); 5.Resources.
Julian Assange has fought injustice on many levels and is still doing so. Like Chelsea Manning, one of the ways in which he is doing this is to fight for his own Human Rights – under attack directly because he fought for the Human Rights of others. For them both, as well as pursuing their other work, this often involves entering into legal process which is groundbreaking and benefits those who come after by creating better precedent.
Sharing Sweet Victory – Report on Solidarity at the Ecuadorian Embassy Vigil here
In September 2014, Julian Assange launched a legal challenge at the UN against his detention under the European Arrest Warrant, issued by Sweden in 2010 and relied on by the UK ever since. He also challenged the UK’s refusal to grant him safe passage to enter properly into the asylum granted to him because of the threat of persecution from the United States, and the infringement of his rights to health and safety inherent in the conditions in which he has to remain to avoid being arrested.
The UK and Sweden correspondingly made their submissions in response, thus recognising and entering into the process.
The determination was in favour of Julian Assange and upheld his contention that he was arbitrarily detained by the actions of two states: the UK and Sweden.
The panel has now publicly issued its findings and they have supported Assange’s contention that he continues to be detained arbitrarily by the UK and Sweden. After receiving the decision, the UK and Sweden were given a period of time within which to appeal the panel’s conclusions. They did not appeal, despite the fact that the UK has now stated that they plan to ‘formally contend’ (?) the determination, and Sweden that they ‘disagree’ with it. They have two months from the date of the decision being made public to request a ‘review’ (would require submission of additional information).
2.The United Nations Working Group on Arbitrary Detention
This challenge was a submission to the United Nations Working Group on Arbitrary Detention (UN WGAD), a panel mandated by the United Nations Human Rights Council, and, as such, the highest authority for determinations of international human rights law respecting arbitrary detention. This group has issued findings on the detentions of various people – including Aung San Suu Kyi, Jason Rezaian, the Washington Post journalist jailed in Iran, and former Maldives President, Mohamed Nasheed – a significant number of whom have been released as a result.
Amal Clooney, Human Rights Lawyer, briefly describes UN WGAD membership
Statement on the Findings (From the Press Conference at the UN in Geneva)
UN Press Release here (includes statement on authority of determination)
UN Summary Statement here
3.Comments from Panel Members
For further details of the Working Group Members see here.
Roland Adjovi, Vice Chair of the group, comments on the findings
Speaking after the decision had been made public, Roland Adjovi said:
- Assange should be allowed to leave the Ecuadorian Embassy freely
- that the panel believed it was “not good” that Assange had spent five years without a formal indictment from Swedish prosecutors
- that the panel operates on the authority of the UN Human Rights Committee, which has the backing of Britain and Sweden, and –
- “What’s the point of having a dispute-resolution mechanism, if they don’t want to comply with the outcome?”
More from Roland Adjovi here in which he says:
- the panel’s job was to look at Assange’s current situation and how long he had been detained. They found that because Sweden had pressed no formal charges against Assange, and he was only going to be extradited so he could be interviewed as a person of interest, the UK and Sweden had violated his rights and arbitrarily detained him.
- All the decision is saying is, if you want to prosecute someone, you need to do your investigation and get evidence against a person, so you get a personal trial and it comes to an end.
- that had the prosecutor charged Assange with a crime, rather than issue a warrant for his arrest for an interview, the outcome might have been different.
- Rights have to be actually realized. We need to provide objective conditions for you to enjoy your rights. If we create conditions where you cannot enjoy your rights, it’s already a violation.
Comments from two other members (one is Mads Andenas) on this Democracy Now! summary
(It’s worth watching all of this 13min digest of situation, but comments of panel members are at 0.33 and 4.30)
The former chair, Professor Mads Andenas, who completed his term in office last summer but was involved in earlier stages of compiling the report on Assange’s arbitrary detention, and who you see in the above video, also said that:
- the expert lawyers and members of the group had come under considerable political pressure from the US and UK when compiling the highly critical report.
- He endorsed the broad result of the findings released on Friday.
- he was “absolutely convinced that [the panel] has been put under very strong political pressure”
- it was a “courageous decision which is important for the international rule of law. “
- it was a “clear, and for people who read it, an obvious, decision”
- it was “an outcome of a judicial process in which Sweden and the UK have taken part..before a specialist body at the UN, the only UN body dealing with arbitrary detention.”
- There was a clear finding under Article Nine of the International Covenant on Civil and Political Rights that Assange is subject to arbitrary detention.
- that “if this finding had been made against any other country with a human rights record that one does not wish to compare oneself with, then these states [Sweden and UK] would have made it clear that the [offending] country should comply with the ruling of the working group.”
- that it is “not a good thing for any country to get a ruling for arbitrary detention against it.”
More from Mads Andenas:
NB. This is extremely interesting as to how courageous panel members need to be when finding against big players like UK (with US ‘in the background’) amidst considerable political pressure throughout – see here for download
And this interview with him talks of political pressure when a case serves the interests of the US.
Throughout, the findings have an eye to the need to uphold Justice – ie Law – and not simply ‘laws’. Part of the injustice in this case arises from a flawed, now discredited and defunct, extradition treaty which was unjust and yet part of UK ‘law’ at the time.
It is a primary responsibility of a prosecutor and a fundamental principle of Justice to progress a case efficiently and speedily by whatever available means. This is due process. The investigation, however, was characterised by the Working Group as having been, and continuing to be, in a state of indefinite procrastination. This is the responsibility of the prosecutor who failed to exercise due diligence.
The Working Group also views that there has been a substantial failure to exercise due diligence on the part of the concerned States with regard to the performance of the criminal administration (97)
…it defeats the purpose and efficiency of justice and the interest of the concerned victims to put this matter of investigation to a state of indefinite procrastination (97)
And the Working Group blame the actions and inactions of Sweden and the UK for the extraordinary length of the deprivation of liberty through which the case, still only at the investigatory stage, has made no progress at all, let alone been charged.
At the outset, the Working Group notes with concern that Mr. Assange has been subjected to different forms of deprivation of liberty ever since 7 December 2010 to this date as a result of both the actions and the inactions of the State of Sweden and the United Kingdom of Great Britain and Northern Ireland. (85)
….considers that, in violation of articles 9 and 10 of the Universal Declaration of Human Rights and articles 9 and 14 ofthe International Covenant on Civil and Political Rights (ICCPR), Mr. Assange has not been guaranteed the international norms of due process and the guarantees to a fair trial...(89)
….the Working Group has no choice but to query what has prohibited the unfolding of judicial management of any kind in a reasonable manner from occurring for such extended period of time.(87)
They further make it quite clear that none of this procrastination is the responsibility of Julian Assange who has continued to express his willingness to participate in the criminal investigation.
unlike other suspects in general whose whereabouts are either unknown or unidentifiable and whose spirit of cooperation is non-existent, Mr. Assange, while staying under constant and highly intrusive surveillance, has continued to express his willingness to participate in the criminal investigation
What is ‘arbitrary’?
In the long explanation of the group’s findings – the Opinion – they explain the term ‘arbitrary detention’ by referring to their ‘case history’ where the definition of this has been examined:
The Working Group, in its Deliberation No. 9, had already confirmed its position on the definition of arbitrary detention. What matters in the expression ‘arbitrary detention’ is essentially the word “arbitrary”, i.e., the elimination, in all its forms, of arbitrariness, whatever the phase of deprivation of liberty concerned (91)
The key factor in a determination is the evidence of arbitrariness – that a person being dealt with by a legal process which is curtailing their liberty is not being dealt with in a reasonable, proportionate and just manner, or the way in which their case is handled is ‘unusual’ (or ‘unpredictable’), excessive, or unnecessary. This equates to illegality regardless of the ‘letter of the law’ of domestic legal procedures.
The notion of “arbitrary” stricto sensu includes both the requirement that a particular form of deprivation of liberty is taken in accordance with the applicable law and procedure and that it is proportional to the aim sought, reasonable and necessary (91)
“An arrest or detention may be authorized by domestic law and nonetheless be arbitrary. The notion of “arbitrariness” is not to be equated with “against law”, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity, and proportionality.”(92)
The panel found that the detention had been arbitrary from the start.
The Arbitrary European Arrest Warrant
The ‘arbitrariness’ in this case begins with the unnecessary use of the European Arrest Warrant which, from the beginning up to this day, more than 5 years later, underpins the deprivation of liberty in this case. In the submission from Assange’s legal team, it is stated that a domestic warrant was issued by the District Court, and that subsequently
a Swedish prosecutor transformed [this] into an international arrest warrant (EAW and Interpol Red Notice) in December 2010, without judicial oversight…
The (at best) unusual circumstances of the issuing of a EAW based on a criminal allegation’ to conduct preliminary investigation in order to determine whether it will lead to an indictment or not’ is another ‘arbitrariness’ flagged up by the Working Group:
The Working Group is concerned that the only basis of the deprivation of liberty of Mr. Assange appears to be the European Arrest Warrant issued by the Swedish prosecution based on a criminal allegation. Until the date of the adoption of this Opinion, Mr. Assange has never been formally indicted in Sweden. The European Arrest Warrant was issued for the purpose of conducting preliminary investigation in order to determine whether it will lead to an indictment or not.(93)
Julian Assange was merely required to consent to an interview, something he had already agreed to and tried to facilitate. It was inappropriate to issue an EAW because he wasn’t a fugitive – the Swedish prosecutor knew where he was and he had been told explicitly that he could leave Sweden – and further the matter was still at a preliminary investigative stage. Nor was it appropriate for him to be detained as he had not been charged; both were disproportionate.
The European Arrest Warrant led to extradition proceedings, which were also inappropriate for a person who was merely expected to answer some questions and give a statement; both of which he was, himself, desirous of doing.
During these precise proceedings it was discovered that the existing extradition treaty was not fit for purpose and did not accord with what the British parliament had intended by its adoption. These flaws were later remedied and the extradition treaty, under which it was determined that Assange must be extradited to Sweden, is not today the same; in fact, as the Working Group say, it has drastically changed.
Nevertheless Assange was denied any redress, through retroactive application, of the injustice of a judgment based on an unfair and poorly devised extradition agreement which should never have come into being, even when it had been flagged up as exceedingly problematical by his very case. This, too, is ‘arbitrary’.
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” (98)
Deprivation of Liberty
The unnecessary EAW (which was accompanied by a ‘red alert’ to boot) sets the ‘tone’ for the ensuing procedures, and leads to the whole catalogue of abuses and misapplied process that follow, starting with his (ridiculous – sorry) detention in solitary confinement for 10 days, going on to his house arrest, and continuing with his inability to leave the Embassy, which is a natural consequence.
The Working Group also views that Mr. Assange’s stay at the Embassy of the Republic of Ecuador in London to this date should be considered as a prolongation of the already continued deprivation of liberty that had been conducted in breach of the principles of reasonableness, necessity and proportionality.(90)
The process begins with an abuse of law and this is compounded as it moves through the different states of deprivation of liberty. First he is unnecessarily detained, then he is subject to the illegality of cruel and unusual punishment, then this disproportionate detention continues. And neither Sweden nor the UK took steps to correct this mismanagement of the process. Nor did the Swedish prosecutor advance the case.
The Working Group also views that there has been a substantial failure to exercise due diligence on the part of the concerned States with regard to the performance of the criminal administration (97)
And being under surveillance – several times the report mentions ‘intrusive’ or ‘constant’ surveillance – is a form of deprivation of liberty
Placing individuals in temporary custody in stations, ports and airports or any other facilities where they remain under constant surveillance may not only amount to restrictions to personal freedom of movement, but also constitute a de facto deprivation of liberty (91)
With reference to the effect of Assange being granted asylum and his complaint that he has been blocked from entering into it, as well as the Swedish and British contention that they have no obligation to recognise it, the report suggests that the British and Swedish have been far too blase, cavalierly sweeping away his concerns.
Even were the concerns not to be valid, it is incumbent on them not to dismiss such concerns out of hand – they must be addressed. To take the attitude that it is no business of Britain or Sweden to concern themselves about an asylum they ‘don’t recognise’ is not good enough.
…irrespective of whether the grant of the asylum by the Republic of Ecuador to Mr. Assange should be acknowledged by the concerned States and whether the concerned States could have endorsed the decision and wish of the Republic of Ecuador, as they had previously done on the humanitarian grounds, the grant itself and the fear of persecution on the part of Mr. Assange based on the possibility of extradition, should have been given fuller consideration in the determination and the exercise of criminal administration, instead of being subjected to a sweeping judgment as defining either merely hypothetical or irrelevant;
Other Matters Inimical to Justice
The panel then raise other matters in the case that are inimical to proper process:
- the refusal of the UK to allow medical treatment and the unsuitability of the Embassy as a place of confinement, with the consequent possibility of serious harm;
- the right to a speedy process including the right to access the case in full with all its evidence and to make a statement at the earliest possible point, and the substantial lack of due diligence which meant this was not accomplished
- the failure to enact the criminal administration in accordance with the legal imperative of the assumption of innocence;
- the failure of the state parties to do anything to shift the stalemate (which it was incumbent upon them to make a reasonable fist of attempting)
- the ‘absence of an effective form of judicial review or remedy concerning the prolonged confinement, and –
- the highly intrusive surveillance to which Mr. Assange has been subjected’
Remedies and Results
The Working Group concludes the report by prescribing the remedy; set Julian Assange free, and compensate him for the abuse of law he has been subjected to as determined within the report.
Consequent upon the opinion rendered, the Working Group requests the Government of Sweden and the Government of the United Kingdom of Great Britain and Northern Ireland to assess the situation of Mr. Assange, to ensure his safety and physical integrity, to facilitate the exercise of his right to freedom of movement in an expedient manner, and to ensure the full enjoyment of his rights guaranteed by the international norms on detention. (100)
The Working Group considers that, taking into account all the circumstances of the case, the adequate remedy would be to ensure the right of free movement of Mr. Assange and accord him an enforceable right to compensation, in accordance with article 9(5) of the International Covenant on Civil and Political Rights. (101)
If the states refuse to comply, this determination is a strong basis for further challenge including to the Convention Against Torture (CAT) & the European Court of Human Rights (ECtHR). It could also lead to challenges in the domestic courts.
Note that these findings do not speak to the validity or otherwise of the actual case.
Melinda Taylor, Assange’s lawyer discussing the findings with Afshin Rattansi RT
SEE Justice for Assange https://justice4assange.com/
Submission from Assange https://justice4assange.com/IMG/pdf/assange-wgad.pdf
UN Summary Statement http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=17012&LangID=E
UN Opinion full findings https://justice4assange.com/UN-Working-Group-Decision.html
Background Information on UN WGAD
Amal Clooney on UN WGAD https://www.youtube.com/watch?v=6E4z7WG2_6E&feature=youtu.be
Commentary from parties and UN (and Members of WGAD)
VIDEO excerpt from UN Press Conference https://www.youtube.com/watch?v=Fcw3SKVRUbM
VIDEO Press Conference Assange & lawyers https://www.youtube.com/watch?v=KhFJSEWyWRw
AUDIO Julian Assange balcony audio download https://www.wetransfer.com/downloads/42cc69c5765d5d4ed209fe6370157b8420160205163831/c364c9c9ad8cc25c1e324f2f14b59cc220160205163831/31aa83
VIDEO Julian Assange balcony speech video https://www.youtube.com/watch?v=M1zAKZhCOlg
VIDEO Julian Assange balcony speech with subtitles https://www.youtube.com/watch?v=erTCzmJEPZ0
VIDEO More from Assange lawyer Melinda Taylor talking to Afshin Rattansi on RT https://www.youtube.com/watch?v=xfb-d2bnoGE
Carey Shenkman, Melinda Taylor & Michael Ratner (Assange Lawyers) http://www.thenation.com/article/its-been-two-weeks-un-panel-declared-julian-assange-should-be-freed/
AUDIO Per E Samuelsson (Assange Swedish lawyer) http://sverigesradio.se/sida/artikel.aspx?programid=2054&artikel=6374347
DOWNLOAD AUDIO – Mads Andenas (ex WGAD Chair) http://www.abc.net.au/radionational/programs/breakfast/former-chair-of-un-working-group-on-arbitrary/7147786
Interview with Mads Andenas http://espresso.repubblica.it/internazionale/2016/02/09/news/pressioni-politiche-sulle-nazioni-unite-per-la-decisione-su-julian-assange-1.249387 English here: http://wiseupaction.info/assange-at-the-un-former-chair-says-when-a-case-relates-to-a-service-for-the-us-there-is-political-pressure-there-was-in-this-case/
Interview with Mads Andenas http://www.pravdareport.com/world/europe/15-03-2016/133811-assange_lawyer-0/
Roland Adjovi (also includes comments from research students who participated) http://m.phillytrib.com/metros/arcadia-professor-writes-u-n-on-julian-assange-hearing/article_cc9d4db0-1ad8-5700-85fb-276f020e97cc.html?mode=jqm
UN High Commissioner for Human Rights http://www.firstpost.com/world/britain-sweden-should-accept-ruling-on-julian-assange-un-high-commissioner-for-human-rights-2618960.html
Alfred de Zayas (UN Independent Expert on the promotion of a democratic and equitable international order) statement http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=17042&LangID=E
Report on interview by ECPMF (European Centre for Press & Media Freedom) of Alfred de Zayas. Implementing the UNWGAD Findings + the Protection of Whistleblowers including Julian Assange. http://ecpmf.eu/news/threats/defamed-whistleblowers-need-protection-un-geneva-expert
AUDIO Alfred de Zayas interview https://soundcloud.com/user-348328179/defamed-whistleblowers-need-protection-interview-with-alfred-de-zayas
AUDIO (and report) Alfred de Zayas on UN Radio http://www.unmultimedia.org/radio/english/2016/02/uk-sweden-should-respect-uns-assange-ruling/#.Vs0e-ubSpaW
Some short subsequent interviews with Julian Assange
AUDIO NPR (Laura Wagner) http://www.npr.org/sections/thetwo-way/2016/02/19/466955541/julian-assange-says-confinement-has-sharpened-his-perspective-on-the-world?utm_campaign=storyshare&utm_source=twitter.com&utm_medium=social
Outlook (Nabanita Sircar) http://www.outlookindia.com/magazine/story/histories-cannot-end-up-in-pentagon/296661
Statement from Ecuador
Statements/Commentary from legal & other relevant bodies/individuals
HRW Human Rights Watch on UK Sweden response https://www.hrw.org/news/2016/02/05/assange-following-rules-or-flouting-them
RSF Reporters Without Borders http://fr.rsf.org/royaume-uni-intense-satisfaction-de-rsf-a-05-02-2016,48809.html
AUDIO Geoffrey Robertson QC and Joseph Kotrie Monson of Mary Monson Chambers on LBC https://twitter.com/wikileaks/status/697039716017897472
AUDIO Edward Snowden’s lawyer’s response audio https://soundcloud.com/radiosputnik/160206-robert-tibbo-full
Prof Balakrishnan Rajagopal http://thewire.in/2016/02/08/the-war-against-julian-assange-must-end-21064/
Dr Roslyn Fuller https://www.rt.com/op-edge/331589-assange-false-claims-msm/
Mairead Corrigan Maguire Nobel Prize Recipient https://www.transcend.org/tms/2016/02/nobel-peace-laureate-mairead-maguire-agrees-with-the-un-expert-panel-decision-on-julian-assanges-arbitrary-detention/
Annemie Schaus and Prof Christophe Marchand (ECCHR blog) http://www.ecchr.eu/en/documents/publications/law-and-subversion/blog/the-detention-of-julian-assange-is-inhuman.html
Eva Joly MEP French original https://blogs.mediapart.fr/eva-joly/blog/150216/assange-un-sujet-de-droit? English http://wiseupaction.info/assange-a-matter-of-right/
38 MEPs (report in Le Monde) write to Jean-Claude Juncker President of European Commission for ‘immediate and effective measures’ to get UK & Sweden to implement findings http://www.lemonde.fr/pixels/article/2016/02/15/julian-assange-des-eurodeputes-demandent-des-mesures-immediates_4865719_4408996.html English (google translate) http://preview.tinyurl.com/gs4u9xu
Mayors of Madrid & Barcelona http://www.telesurtv.net/english/news/Madrid-and-Barcelona-Demand-Assanges-Liberation-20160223-0025.html
500 signatures condemning UK, Sweden response – artists, nobel prize winners, human rights organisations https://justice4assange.com/IMG/pdf/Letter_to_Ambassador_of_UK_to_Geneva_1_March_2016-2.pdf
VIDEO Democracy Now! https://www.youtube.com/watch?time_continue=3&v=3Tx28_Jmy3w
Anonymous Press Release http://www.anonymousvideo.eu/press-release-regarding-julian-assange.html
Jonathon Cook –