We awoke to the extraordinary news that Julian Assange had announced he’d leave the Ecuadorian embassy in London tomorrow and submit to arrest if the UN working group on arbitrary detention turned down his complaint to them. Shortly afterwards, the BBC reported that the working group has come down in his favour. That would be an astonishing conclusion for the working group to reach.
We won’t be able to read the working group’s opinion at least until tomorrow. In the meantime, here’s the 42-page submission Julian Assange sent to the working group, and that it seems has persuaded them.
The reason this opinion is so astonishing is because it’s hard to see how either Britain or Sweden can be described as detaining Julian Assange at all, or depriving him of liberty (to use the expression the working group prefers (see pages 15-16 of its 2015 annual report).
Julian Assange refers in his submission to cases like Riad and Idiab v Belgium in which the European Court of Human Rights ruled that two failed asylum seekers were deprived of liberty contrary to article 5 of the ECHR when effectively trapped in an airport transit zone. In that case, the Belgian authorities took the two men to the airport to technically free them, following court decisions ordering their release; in the transit zone they were able to leave only by consenting to deportation. It seems they were wholly dependent on charity for food and drink.
But in his own case, of course, Assange was not taken to the Ecuadorian embassy by the British authorities. Nor is his being there part of any official strategy to force him out of the country. He truly is there by choice, and the fact that he’s not deprived of his liberty either by Britain or Sweden is conclusively shown by the fact that both countries would very much like to do so, if they can get their hands on him.
When we do see the opinion, a point of special interest will be how the working group categorises this “deprivation of liberty” in terms of the classification scheme it adopts:
A) When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of his sentence or despite an amnesty law applicable to him)(Category I);
B) When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 10 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights (Category II);
C) When the total or partial non-observance of the international norms relating to the right to a fair trial, spelled out 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 (Category III).
D) When asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy (category IV)
There is a category V — where detention is discriminatory — but Julian Assange does not allege that.
The working group might well put this “deprivation of liberty” in “category I”: once you conclude that a situation like Julian Assange’s amounts to a deprivation, then it will clearly be impossible to find a legal basis for it. That’s because neither Britain nor Sweden is currently able to exercise any official powers over Julian Assange, and cannot therefore identify any legal powers they’re exercising, or justify them. There’ll be some irony about it, if this if their conclusion.
“Category II” is I suppose possible, if the working group thinks this is all a conspiracy to silence or punish Asange’s work with Wikileaks—so that the detention results from the exercise of his freedom of expression under article 19 UDHR.
It’s hard to see how they can find a “category III” deprivation of liberty, since he’s not on trial on Britain, and Sweden is unable to put him on trial. Nor is it obvious how either country has gravely impaired the fairness of any future trial in Sweden.
Finally, “category D” is I guess a possibility, if the working group starts from the assumption that Assange is a refugee (Ecaudor has granted him diplomatic asylum, a concept not accepted by Britain or most countries outside Latin America) and is “in custody” without the possibility of review. Even that’s hard to imagine since he can apply to the High Court at any time, arguing that the police or government are holding him in breach of the Human Rights Act.
it leads to a rather topsy-turvy outcome : if the UN find he is being detained in the Embassy, he’ll up sticks and leave; if they find that he is not being detained in the embassy, he’ll continue to stay in the embassy.
Not being a lawyer, I am toying with the idea that this working group perhaps could be considering it to be some type of problem of if J.A. possibly having being subject to persecution then for such to be tantamount of possibly having been deprived of “liberty”.
But (sorry to make such an obvious point) he’s free to go at any time. He’s not free to walk past a police officer without being apprehended, but neither is anyone else with a criminal charge pending.
Detention is a complete red herring. Imagine that, instead of seeking diplomatic asylum, Assange had hired the fastest speedboat in the world and travelled to the dead centre of the North Sea. And imagine that the police (British or Swedish) pursued him in their own, slower, craft. Assange would then be provisionally free at time 1 (Assange arrives at centre of North Sea) and would stay free, in a bubble of time, until time 2 (police catch up). In just the same way, he’s now provisionally free in a spatial bubble (inside the embassy) and would become unfree – in police custody – if he were outside it.
By going to the embassy, Assange put the criminal justice process on hold; this necessarily means that every action other than staying in the embassy will have the same outcome, i.e. the process will resume. The idea seems to be that this – the loss of an inherently provisional and temporary immunity – is intolerable, and hence that any such course of action is unthinkable. As such, staying in the embassy ceases to be a free choice, and somebody (Britain? Sweden? Ecuador? the world at large?) can be reproached for failing to offer Assange the freedom to go about his life untroubled by criminal justice.
Unless I’m missing something very obvious, which I’m starting to think must be the case. The UN report is going to make interesting reading, to say the least.
Phil,
That’s an interesting way of thinking this all though—and I agree with you. I don’t think there’s anything obvious you’re missing.
I’m not against human rights law (far from it) or human rights law being applied to novel situations. But some lawyers can overthink the application of human rights to a situation like this to such a point that they lose sight of the most obvious aspects of it. This may be an example.
As his lawyer Melinda Taylor explains it, he cannot obey the law without putting his own life at risk. This is why he was granted asylum by Ecuador. By that reasoning he is detained. Despite the feelings on this fora, the UN panel has granted these conditions are real and are true. He is therefore detained.
His life is at risk from whom you may ask, extradition to the US where charges held under seal are pending which include ‘communicating with the enemy’ and ‘espionage’. The US intends to disallow any 1st amendment rights as they have stated they do not recognise that Assange is a journalist
Elsewhere than the United States this condition is held to be unfair and even illegal.
Further to this, despite being ordered by Swedens Courts of Appeal the case prosecutor apparently continues to refuse to question Assange in London.
He has asked Sweden interview him in London – refused
He has asked Sweden guarantee no onward extradition – refused
Ecuador summoned Sweden to interview him in the Embassy 47 times – refused.
As Assange can neither forward the cases progress, nor establish his grant to asylum, he is left in a precarious legal limbo that 3 states, the US, the UK, and Sweden seem witless or to actively encourage.
If he steps outside the Embassy he risks extradition by either Sweden or the UK and a very certain future of detention for a very long time ‘at the very least’. There is also the burden of the death penalty which Members of Congress have publicly urged. This notwithstanding the poor record of detention in the US, where at GITMO the most secure facility on Earth, 8 persons have managed to die in custody.
The UN’s panel was sought to highlight this conundrum to encourage these states to make some progress in his case or simply let him go.
There can imo be no doubt that the notion of “arbitrarily detained” is foremost a conceptual thing, and not a reference to some phenomenon or some physical event as such, so everyone that jokes about animals and consumers at a hamburger outlet being arbitrarily detained are being very silly and inconsiderate I think, given Assange’s situation which has been sketch up by a poster just above.
[…] The UN panel’s document can be read here along with a scathing critique of it: Head of Legal • ObiterJ considers S.21A here in the light of the UN Panel […]
“Apparently” according to whom? Last I heard, it’s Ecuador that refused access in January this year.
“Apparently” according to whom? Last I heard, it’s Ecuador that refused access in January this year.”
After the disaster last August, when Ms Ny filed her application to interview within the Ecuadorian Embassy too late to be effected (some 29 hours notice). Over the New Year, Ecuador and Sweden had completed working on a bilateral Sweden-Ecuador agreement to better enable the interview process to take place. It was said not to be for Assange specifically but it seemed to be tailored for this purpose.
With this in mind, after the holiday period Ms Ny again lodges for interview. This time however she sidesteps the agreed process, simply re-using the same forms she had used in 2015 the year before with inapplicable parts (allegations) crossed out by striking through them with a pen. Rightly or not Ecuador turned her down and asked she resubmit correctly according to the agreement in place.
Ecuador may at first seem pedantic, but they are the representative office for the Government of Ecuador who are keen to have this circus over with. They want their embassy back and they tire of the constant Police and MI5 presence, the debugging of the Embassy at regular intervals and the mail scans. But like Embassies everywhere they will insist protocol be applied as it is not for the officers of the Embassy to direct what it happening, they are just representatives of their Government who are distantly located from the day to day issues in London. For Assange too it is somewhat inconvenient for his legal team to program their assistance.
Heres hope, cool heads prevail and Ms Ny utilises Swedens own Embassy staff to schedule arrangements as per the agreement in place. Whatever can be said about Ms Ny’s skills Im not sure, but it took her 2 attempts to lodge with INTERPOL, and 5 attempts to generate the EAW for this case. Working to a bilateral Sweden-Ecuador agreement doesnt seem to be within her forte either.
Please cite.
on bilateral agreement
http://www.theguardian.com/media/2015/aug/28/sweden-ecuador-julian-assange-talks
“We have agreed to what the Ecuadorians asked for,” said Cecilia Riddselius, the Swedish justice ministry official responsible for the case. “It was a political decision to have this discussion.
on Ms Ny request to interview
http://www.theaustralian.com.au/news/latest-news/ecuador-says-assange-to-be-questioned-soon/news-story/1548301e37fbcdc257d86a4be30de65a
“Foreign Minister Ricardo Patino added that Swedish judicial authorities had shown “real lack of respect” by sending a questionnaire with some sections crossed out by hand, and a new version had been requested before the case could proceed.”
was there something else?
Thanks.
From that second link:
SWEDISH prosecutors say Ecuador has informed Sweden in a letter it will conduct the interview of the Australian and has asked for a list of questions they want answered.
It must be noted that Julian Assange has not been charged with any crime. The extradition order is so that they can interview him in Sweden, which they could have done by coming to the UK or via video conference (considered normal practice). The unwillingness of the Swedish prosecutor to facilitate this is the reason Assange is in the situation he is (either incompetence on the part of the Swedish prosecutor or political motivations). The troubling question is whether the Swedish prosecutor would have gone to the extent it has in trying to get an extradition, and whether the UK would have gone to the extent it has (spending 11.1 million pounds on policing) in facilitating the request if it were an ordinary person. If people are arguing that it is so obvious that it was a decision on Julian’s part to place himself in detention, they should also see the obvious politicization of this case because of Julian’s WikiLeaks activities.
[…] to the United Nations working group on arbitrary detention. You can read his submission on the Head of Legal blog, where Carl Gardner has posted a commentary on Assange’s legal case to the panel, and on the […]