Introduction

On the 4th of December 2015 the Working Group on Arbitrary Detention of the Human Rights Council (hereinafter WGAD) adopted Opinion no. 54/2015 concerning the detention of Julian Assange, the creator of Wikileaks.[1] The content of the decision, due to its undeniable political weight, has echoed worldwide. It has been held that the deprivation of Mr. Assange’s liberty was arbitrary and in contravention of Articles 9 and 10 of the Universal Declaration of Human Rights and Articles 7, 9(1) (3) (4), 10 and 14 of the International Covenant on Civil and Political Rights, with only one dissenting opinion of member Vladimir Tochilovsky. This post aims to provide a general overview of the decision, and endeavours to underline, particularly, the different sensitive matters arising from the two different statuses of Mr Assange: that of an asylum seeker and that of a defendant.

 

The Case                   

Apart from the well-known US issue linked to the Wikileaks scandals, Mr. Assange has faced a controversial judicial case which resulted in his deprivation of liberty.[2] In 2010, a Swedish prosecutor started an investigation against Mr. Assange following several allegations of sexual misconduct. As a result, Mr Assange spent 10 days in isolation in London’s Wandsworth prison, 550 days under house arrest, and thereafter has been in the confines of the Embassy of the Republic of Ecuador in London. In 2012, he was granted political asylum by Ecuador, based on the risk of extradition to Sweden without any guarantee of non-refoulement to the US, where he risked facing the death penalty. According to the source, in 2014 the Stockholm District Court upheld a European Arrest Warrant (EAW) with the aim of returning Mr. Assange back to Sweden for questioning regarding an ongoing preliminary investigation.

The WGAD was requested to express its opinion on the circumstances on which Mr. Assange’s detention was based, in light of his current status of asylum seeker, his juridical situation in Sweden and the role of the UK in managing the European Arrest Warrant issued by the Swedish authorities.

 

The Issues

The WGAD decision’s pathway could be traced through three different points: the definition of Mr. Assange’s condition as “detention”, which the WGAD was requested to qualify as arbitrary or not; the binding force of the international law obligation imposed on the UK and Sweden to accept the status of Mr. Assange as a political asylum seeker; and the parallel juridical matter giving rise to the minimum standard of guarantees which must be granted to the suspect/accused in criminal proceedings.

In relation to the first point, the source’s allegations underlined the necessity to establish a proper definition of detention which should take account of the particular circumstances of Mr. Assange’s experience as an asylum seeker.

In this sense, the source prompted the Working Group to follow three key points in its reasoning: the inability of Mr. Assange to access the full benefit of the grant of asylum; the continuing and disproportionate period of time which has characterized the denial of access to these guarantees; and the ground of the EAW issued by the Swedish authorities.[3] The Swedish Government supported that Mr. Assange had voluntarily decided to remain in the confines of the Ecuadorian Embassy, without the possibility for the Swedish authorities to control his decision. The UK Government considered the use of the Embassy’s premises in avoiding arrest as a violation of the Vienna Convention on Diplomatic Relations, according to the duty of the UK to extradite him as requested by Sweden through the EAW.[4] Both State responses seem to have disregarded the crucial factor behind this matter: Mr Assange’s fear of extradition to the US. Against this backdrop, and specifically the risk of the death penalty, it should have been harder for them to come to the conclusion that Mr Assange’s choice of self -confinement was a free determination.[5]

The second point dealt with by the WGAD was the finding of a binding international law obligation imposed on the UK and Sweden to recognise Mr Assange’s status as a political asylum seeker, in light of the asylum granted to him by the Republic of Ecuador. The Governments’ responses were based on the limited scope of the Latin American Convention on Diplomatic Asylum, ratified by Ecuador but not by the UK and Sweden, due to its nature as a regional instrument. The Swedish Government affirmed that “the Latin American Convention on Diplomatic Asylum does not constitute general international law. On the contrary it is a regional instrument and no similar instruments or practices exist elsewhere”.[6] They also affirmed that general international law does not recognise diplomatic asylum as implied by the source and this position found support in the 1950 Asylum case of the International Court of Justice. The ICJ excluded any obligation by a third State to recognise the asylum granted to an individual by another State.[7] However, as underlined by the comments from the source, at least two legal provisions create international law obligations both for the UK and Sweden, namely, Article 14 of the Universal Declaration of Human rights;[8] and Article 1 of the 1951 Refugee Convention, as well as subsequent Protocols on the status of refugees, which define all the related obligations for States Parties. First among others, is the non- refoulement provision.[9] Despite the understandable (political) reservations by both Governments in unconditionally recognising Mr. Assange as a political refugee, there was no justification for relying only on the “regional” value of the political asylum granted by Ecuador according to the Latin American Convention, without considering other international obligations as well.[10]

 The last point dealt with by the WGAD was in relation to the European Arrest Warrant and the minimum standard of fair trial guarantees which should have been granted to Mr Assange, as a defendant, by the Governments. The EAW, issued by the Stockholm Court against Mr. Assange, presented several controversial points. Notably, the Swedish authorities underlined that there was no casual link between their EAW and the self-confinement of Mr. Assange in the Ecuadorian Embassy. This overlooks the denial of the UK and Sweden to recognize Assange’s status as an asylum seeker, despite the worldwide publicity his case has received due to his controversy with the US. The juridical ground of the Swedish EAW remained unclear. Mr. Assange was not charged as defendant. Nevertheless, the Governments used the argument of the “criminal prosecution for ordinary crime” in order to exclude Mr. Assange’s right to asylum. That represented a clear contradiction; on the one hand, the Swedish authorities rejected the qualification of Mr. Assange as an “accused”; yet on the other hand, they used the criminal investigation to justify the EAW, as well as the denial of political asylum. It is worth noting that the EU Framework Decision of 13 June 2002 on the European Arrest Warrant clearly established, in Article 1 (paras 1 and 3), the definition of the EAW, as well as the minimum standard of procedural guarantees which must be respected.[11] In this sense, Article 1 para 3, referring to Article 6 of the European Convention on Human Rights, clearly establishes a link between the status of the requested person and the accused/suspect under investigation.[12]

At the same time, the UK’s position on the execution of the EAW was not entirely comprehensible. In the UK Court’s opinion, the extradition of Mr. Assange was deemed to be fair and proportionate, yet in 2014 a corrective legislation entered into force in the UK with the aim to – among others – bar extradition where no decision to bring a person to trial has been made. As rightly underlined by the source’s comments, the UK should have recognised both the absence of the necessary judicial grounds behind Sweden’s issuing of the EAW, and the vulnus of the procedural guarantees apparently justified by Mr. Assange’s classification as not a “proper defendant”, which de facto resulted in a clear violation of Article 6 of the ECHR and Article 14 of the ICCPR.

Conclusion

After a concise discussion, the WGAD concluded that Mr Assange’s deprivation of liberty must be charged as an arbitrary detention “in contravention of Article 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”.[13]

The different sensitive issues at stake made the WGAD’s pathway arduous to walk. The necessity to combine the delicate (political) asylum problem with the judicial cooperation matters also involved the hard juridical arguments of the disproportionality of the EAW and the violation of the minimum standard of procedural guarantees. In spite of the several criticisms as to the decision’s content, the WGAD analysed all the matters involved and summarised them in a clear and brief decision, which could have been the only way to settle the controversy easily and “rapidly”. All things considered, the evident lack of homogeneity between the several issues involved, as well as the serious political matters against the backdrop of this affair, have resulted in a conclusive decision which deserves to be appreciated.

 

[1]. The decision was published on the 5th of February 2016.

[2] The use of the expression “deprivation of liberty” intentionally discloses the content the decision and the opinion of the author, as the first question which the WGAD was called to solve was the qualification of the Mr. Assange’s condition as deprivation of liberty or restriction.

[3] On the question whether the self – confinement of Mr. Assange in the Embassy of Ecuador could be reasonably defined as “detention”, the source affirmed that “the Working Group on Arbitrary Detention had agreed in previous cases that a deprivation of liberty exists where someone is forced to choose between either confinement, or forfeiting a fundamental right – such as asylum – and thereby facing a well – founded risk of persecution” (Opinion no. 54/2015, adopted by the Working Group on Arbitrary Detention on its 74th Session, p. 3).

[4] The individual dissenting opinion of Tochilovsky linked the denial of the qualification of Mr. Assange’s restriction as detention to a substantial lack of competence of the WGAD in the light of its mandate. The Governments, on their side, emphasized this point to justify how the situation of Mr. Assange was the result of his own choice to not leave the Embassy.

[5] For an interesting point of view on that point, see Interview with former UNWGAD Chair and Norwegian International Law Professor Mads Andenas, in www.justice4assange.com/UN- Working-Group-on-Arbitrary.html, who stated that “Liberty must be capable of being realized in actuality. Where the exercise of such liberty would have significantly coercive results, such as further deprivations of liberty or putting other rights at risk, this cannot be described as liberty in practice”.

[6] Opinion no. 54/2015, Governments’ responses, p. 6.

[7] Asylum case (Col. v. Peru), Judgment, 1950 ICJ Reps. 273 (Nov 20). On this point, see also M. Happold, Julian Assange and the UN Working Group on Arbitrary Detention, on EJIL: Talk! (www.ejiltalk.org), 5 Feb. 2016.

[8] “Everyone has the right to seek and to enjoy in other countries asylum from persecution”.

[9] See among others, W.T. Worster, The contemporary international law status of the right to receive asylum, Int J Refugee Law (2014), 6 (4) 477-499.

[10] The Latin American Convention on diplomatic asylum (i.e. the Caracas Convention) was adopted within the Organization of American States (OAS) and was signed by both the Republic of Ecuador and the USA. That is why it is correct to qualify it as a regional instrument of human rights law, to distinguish it from the universal tools of general international law.

[11] COUNCIL FRAMEWORK DECISION of 13 June 2002 (2002/584/JHA) on the European arrest warrant and the surrender procedures between Member States 1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

[12] 3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.

[13] Opinion no. 54/2015 adopted by the Working Group on Arbitrary Detention, p. 17.