The United Nations Working Group on Arbitrary Detention handed down its decision on Julian Assange on Friday 5 February 2015 (A/HRC/WGAD/2015/54). It has been met with almost universal ridicule from a line of British officials, legal academics and the press. The decision has been described as ‘ridiculous’ by the UK Foreign Secretary, Phillip Hammond, and former Director of Public Prosecution Ken MacDonald argues that describing Assange’s conditions as ‘arbitrary detention’ is ‘ludicrous’. The press is equally incredulous. The Washington Post has published only the dissenting opinion of the decision, which views Assange’s conditions as ‘self-confinement’ (A/HRC/WGAD/2015/54, see Individual dissenting opinion of WGAD member, Mr. Vladimir Tochilovsky, paragraph 3, page 18). The Political Editor of Die Zeit,  argues in the New York Times, that Julian Assange is destroying Wikileaks. Joshua Rozenberg of The Guardian has asked ‘how did the UN get it so wrong on Assange?’. Similarly, Marina Hyde of The Guardian has ridiculed the expertise and competence of the committee, referring to them merely as ‘academics seemingly devoid of judicial expertise’. Given their love affair with Wikileaks, and the freedom of speech it represents, I could dwell for a while on the irony of Guardian journalist ridicule. But for now, I will set that aside. This point of this piece is to correct the imbalance of coverage on this decision, which consistently fails to explain the arguments which persuaded the Working Group in the first place.

Factual background

Mr. Assange is wanted for questioning in Sweden to answer allegations of sexual assault. The Swedish prosecutorial authorities have issued a European Arrest Warrant (EAW) which the UK authorities are bound to implement. Mr. Assange, after arrest of 10 days and house arrest thereafter, was granted asylum by Ecuador after his appeal against the EAW failed. This is when he took up residence in the Ecuadorian Embassy in 2012. Assange argues that he fears ultimate extradition from Sweden to the USA on the grounds of his involvement in Wikileaks. This is obviously no small fear, given the sentencing and treatment of Chelsea Manning in the USA, and the decision of Edward Snowden to take up asylum in Russia. The Swedish authorities refuse to grant Assange any guarantee of non-refoulement to the US, and his right to asylum has also not been recognized by the UK or Sweden. Anyone who has walked past the Ecuadorian Embassy in London over the last three and a half years will have seen British police standing outside in the street. Until very recently, this police guard operated on a 24 hour basis costing the UK taxpayer £10M, but has now been relaxed slightly and replaced with ‘overt and covert surveillance’. The point of all this activity is to arrest Mr. Assange were he to leave the embassy. Consequently, Mr. Assange argues that he is not free to leave the Embassy; he would have to accept the conditions of his immediate arrest, his extradition to Sweden and his subsequent questioning there. He would have to undertake the risk that he would be extradited to the US, and the subsequent risks to his rights were that to happen.

The mandate of the UN WGAD and the test for ‘deprivation of liberty’

In order to establish its competence, and to decide upon the case, the UN WGAD has to decide whether there is a ‘deprivation of liberty’ under Article 9 of the International Covenant on Civil and Political Rights (ICCPR). This involves a more severe restriction of motion within a narrower space than mere interference with liberty of movement. (This is explained in General Comment 35 by the UN Human Rights Committee, para. 5.)

The line between a ‘restriction of liberty’ and ‘deprivation of liberty’ is finely drawn in human rights jurisprudence. The European Court of Human Rights has issued guidance in Guzzardi:

In order to determine whether someone has been ‘deprived of his liberty’ within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends. (Guzzardi v Italy (1980) 3 E.H.R.R. 333)

This conception of ‘liberty deprivation’ was approved by the UK House of Lords in JJ v Secretary of State for the Home Department [2007] UKHL 45, and explains why someone contained by a police kettle for a few hours (Austin) or stopped and searched for half an hour without reasonable suspicion (Gillan) might also make an arguable claim that they have been ‘deprived’ of their liberty, rather than merely having their liberty ‘restricted’(Gillan v Commissioner of Police for the Metropolis [2006] UKHL 12; Gillan and Quinton v United Kingdom (2010) 50 EHRR 45; Austin v Commissioner of Police for the Metropolis [2009] UKHL 5; Austin v United Kingdom (2012) 55 EHRR 14). As counterintuitive as this may seem to the lay reader, liberty deprivation doesn’t consist only in the easily recognizable conditions of state detention, where individuals are detained through the direct actions of the State against their will. While the European Court of Human Rights acknowledges that borderline cases might be a matter of ‘pure opinion’, it also argues that it has the right to decide on these issues.

The UN WGAD is given a very specific mandate by the United Nations and its Members to decide on these very issues. Its role is different to that of a national or regional court, and it applies an independent and exacting standard of review to national authorities. A UN WGAD ruling is the highest expression of the review of arbitrary detention that can be made by a human rights body. The European Court of Human Rights has recognised that ‘in view of the composition, functions, process complaints and investigative powers of this body, the Working Group of the United Nations on Arbitrary Detention should be viewed as “a procedure of international investigation or settlement” within the meaning of Article 35 of the Convention’. (See, Peraldi v France, Application No. 2096/05, Judgment of 7 April 2009, and more recently Ramazan Cem Gürdeniz contre la Turquie, Requête no 59715/10, Judgment of 1 May 2013. See about the status of Special Rapporteurs in international law, the International Court of Justice, Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, I. C. J. Reports 1999, p. 62.)

The European Arrest Warrant and the Swedish investigation

As easy as it might be in the press to simplify the issues surrounding this case, it is worth elaborating on some key technicalities. The UK authorities are acting pursuant to the conditions of a EAW issued by Sweden who are asking to question Mr. Assange on allegations of sexual assault in order to decide whether to charge him. The prosecutorial authorities in Sweden re-opened the case against Assange, despite an earlier preliminary investigation (in which Assange had co-operated while in Sweden) that decided there was no case against him in respect of the alleged rape. There is to date no charge against Mr. Assange. The EAW has been at the core of Sweden’s approach, and there had been no attempt by Swedish prosecutors to make use of ‘mutual assistance protocols’ in which Mr. Assange could be interviewed by video-conference (a procedure available under Article 9 of Second Additional Procotol on ‘mutual assistance’). (These are instruments of the Council of Europe: European Convention on Mutual Assistance in Criminal Matters, Strasbourg 20.IV.1959, with changes following from Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters, Strasbourg, 17.111.1978 and Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters, Strasbourg, 8.XI.2001.) Assange’s lawyers have offered co-operation on this alternative a number of times. The Swedish prosecutorial authorities have refused to explore these alternatives, relying instead on the EAW they have issued. They have also failed to disclose the full case against Assange.

Assange has tried but failed to challenge the European Arrest Warrant against him in Sweden and in the UK. In a judgment handed down on 11 May 2015, the majority of the Swedish Supreme Court held that the EAW was valid, but a dissent in this case by Justice Svante Johansson also argued that the arrest warrant was ‘in violation of the principle of proportionality’, as the reasons for continued detention did not ‘outweigh the intrusion and inconvenience’ caused to Assange. According to the Guardian coverage of this case, the ‘Swedish Supreme court also stated … that the investigating authorities “must examine what alternative investigative opportunities are available to drive the investigation forward”. Former Legal Counsel to the United Nations and Legal Adviser to the Swedish Ministry of Foreign Affairs, Hans Corell, has stated that he “does not understand why the prosecutor had not questioned Julian Assange during all the years he has been at the Ecuadorian Embassy”. A spokesperson for Marianne Ny, the prosecutor in the case, said she was waiting for formalities to be completed before conducting the interrogation, which is a necessary step towards formal charges’. Notwithstanding, the Swedish authorities have not availed themselves of the less restrictive option of interviewing Assange in other ways, and the stalemate in this regard continues. There is a suggestion that the Swedish authorities continued actions in this regard could change the view of the Swedish Supreme Court on the proportionality of these actions. According to Anne Ramberg, the head of Sweden’s Bar Association, as cited by the Guardian, “the split decision suggests that the supreme court’s position on proportionality is not set in stone; “The reasoning of the court indicates that it may take a different view with the passing of further time…”.

In the UK, Assange’s challenge goes to the validity of the EAW under UK law. The majority of the Supreme Court held against Assange on the matter of whether an EAW could be issued by a ‘prosecutor’ and not a ‘judicial authority’ as stipulated in relevant European and English law. The judgment led to Assange’s decision to claim asylum and take up residence in the Ecuadorian embassy in the first place. The Supreme Court decision is a matter of some controversy in the academy and elsewhere. This relates predominantly to questions of legislative interpretation, parliamentary intent, and the correct interpretive technique to apply to EU law. (See Veronika Fikfak, ‘The meaning of judicial authority after Assange’ LQR, 2015. See also Lord Mance in Lithuania v Bucnys [2013] UKSC 71 where Lord Mance writing on behalf of the majority clearly rejects the interpretive approach to the meaning of EU law adopted in Assange.) At the centre of the case is the meaning of ‘judicial authority.’ Two highly respected judges in that case, Baroness Hale and Lord Mance, dissented from the majority view, and argued that the EAW was incapable of recognition in England because it was issued by the Swedish public prosecutor and this did not constitute a ‘judicial authority’ as required by English law.

Before and after Mr. Assange’s appeal in the UK Supreme Court, there has also been considerable political controversy relating to the UK’s opt-in to the European Arrest Warrant. Importantly, on 10 November 2014 a debate regarding whether the UK wished to continue being bound by the EAW was conducted in Parliament on the grounds that it leads to potential miscarriages of justice. The debate included an enquiry and report by the House of Lords Select Committee on Extradition Law. Crucially, the Committee recommendation argued that:

The Committee recognises the flaws that have been drawn to our attention in the EAW and the ways in which it has been implemented. In some cases these flaws have led to miscarriages of justice, although recent amendments to the Extradition Act 2003 should help to remedy at least some of them. If the UK were to opt back in, the Government should work further to amend and improve the system.

The  opt-in of the UK to the EAW thus presently relies on clearer and improved safeguards in domestic law. Assange’s lawyers argued before the UN WGAD that these changes ought now to apply to Assange. They cite the UK Government clear statements in this regard, which is repeated in the UN WGAD decision in footnote (i) as follows:

The changes to UK extradition legislation following Mr. Assange’s case. In brief, the United Kingdom has now concluded:

(i) By virtue of a binding decision of the UK Supreme Court in 2013, that the UK will no longer, where a request is made under a European Arrest Warrant, permit the extradition of individuals where the warrant is not initiated by a judicial authority. It has determined that the requirement of a “judicial authority” cannot be interpreted as being fulfilled by a prosecutor as is the case in relation to Mr. Assange.

(ii) By virtue of legislation in force since July 2014, that the UK will no longer permit extradition on the basis of a bare accusation (as opposed to a formal completed decision to prosecute and charge) as is the case in relation to Mr. Assange.

(iii) By virtue of the same legislation now in force, that the United Kingdom will no longer permit extradition under a European Arrest Warrant without consideration by a court of its proportionality (Mr. Assange’s case was decided on the basis that such consideration was at that time not permitted).

However, the UK government has argued before the UN WGAD that these changes do not apply retrospectively to Mr. Assange.

The main arguments of Assange’s lawyers

The central argument of Assange’s lawyers’ proceed on the basis that his confinement in the Ecuadorian embassy ‘cannot … be characterized as volitional’ (para 13). He is not free to leave, because he is protecting himself from the violation of other human rights: ‘the only way for Mr. Assange to enjoy his right to asylum was to be in detention’ (para 11). If Assange were to leave he would be arrested in the UK and extradited pursuant to a European Arrest Warrant (EAW) issued by Sweden. Consequently, he would expose himself to the risk of a ‘well founded fear of persecution’ were he to be extradited to the US from Sweden (para 12). In the words of Assange’s lawyers:

The source submits that Mr. Assange was deprived of his liberty against his will and his liberty had been severely restricted, against his volition. An individual cannot be compelled to renounce an inalienable right, nor can they be required to expose themselves to the risk of significant harm. Mr. Assange’s exit from the Ecuadorian Embassy would require him to renounce his right to asylum and expose himself to the very persecution and risk of physical and mental mistreatment that his grant of asylum was intended to address. His continued presence in the Embassy cannot, therefore, be characterised as ‘volitional’ (para 13).

Assange’s lawyers move on to the failure of the Swedish authorities to pursue their investigation with due diligence and through less restrictive means. Simply put, the Swedish authorities have ‘not established a prima facie case’ and have refused ‘unreasonably and disproportionately’ to ‘question him through alternative means offered under the process of mutual assistance’ (para 13). Furthermore, they argue that Assange has been deprived of the opportunity to know the case against him, to provide a statement regarding the charges against him, and thus to defend himself against the charges. This combination of factors thus also bears upon the principle of audi alterem partem and the presumption of innocence. The cumulative result of all of these factors, and the failure to guarantee non-refoulement to the US, have resulted in a situation in which, on Assange’s argument, he has in effect been arbitrarily detained. The argument on arbitrariness rests on a claim of disproportionality: ‘any hypothetical investigative inconveniences regarding the interview of Mr. Assange by video link or in the Embassy pale into insignificance when compared to the grave risk that refoulement poses to Mr. Assange’s physical and mental integrity’ (para 18).

Evaluation

In essence, the UN WGAD had to decide two questions. Firstly, whether there was a ‘deprivation of liberty’ as opposed to a ‘restriction of liberty’. Secondly, assuming the answer to the first question is in the affirmative, whether that deprivation of liberty was ‘arbitrary’.

In response to the first question, the UN WGAD clearly accepted the argument that Assange’s conditions are not volitional, or self-imposed. The weakness of the UN WGAD decision is that it failed to address this point directly and clearly. Its justification was based instead on ‘substantial failure’ of the authorities ‘to exercise due diligence’ in the ‘performance of criminal administration’ (para 98). Inter alia, it castigated the authorities for failing to weigh up Assange’s rights to non-refoulment and asylum which should be been ‘given fuller consideration … instead of being subjected to a sweeping judgment as either merely hypothetical or irrelevant’ (para 98). The discussion doesn’t however either explicitly endorse the argument that Assange’s residence in the Embassy ‘cannot be characterized as volitional’, or directly refute the dissenting argument that Assange’s position is one of ‘self-confinement’. This is the weakness in the report which all critics have exploited. On this, there are a few points worth making.

The conceptual grounds for describing Assange’s conditions as a form of deprivation of liberty are arguable. This doesn’t only relate to the length of time that Assange has remained in the Ecuadorian embassy. It also relates to Assange’s ongoing circumstances. Simply put, 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. To argue that Assange has been ‘self-confined’, as is the case in the dissent, is to argue that he has chosen his conditions of residence in the Ecuadorian Embassy by his free will. But such an assertion would be to ignore the conditions which resulted in his decision to seek asylum in the Ecuadorian Embassy in the first place, and in his decision to remain there. He is not free to leave of his own will. The fact that Assange is resisting arrest doesn’t resolve this issue, as this would be to argue that liberty is a right contingent on his co-operation.

To argue that Assange’s conditions are a ‘deprivation of liberty’ is not to argue that this deprivation is necessarily ‘arbitrary’. More is needed to show this. On this question, the UN WGAD was persuaded that the confinement was arbitrary. The most compelling grounds were those based on proportionality. In short, there could have been another, less restrictive way of proceeding. Before issuing a European Arrest Warrant, the Swedish authorities could have followed the normal practice of interviewing Assange in a British police interview room. After Assange, sought asylum in the Ecuadorian embassy they could have questioned Assange by video link. He could have been provided the chance to respond to the allegations against him, or provided with an assurance related to his refoulment to the US. But his conditions currently are based on the legitimacy of an EAW which two UK Supreme Court justices consider invalid under UK law, and which one Swedish Supreme Court judge considers disproportionate. Moreover, the EAW conditions have been tightened since the initial Assange decision, but the UK government argues that these conditions do not apply retrospectively. There is still no charge against Mr. Assange. He has, under international, European, and domestic law, the right to be presumed innocent until proven guilty. He has offered to respond to the process in other ways, and would co-operate fully if he had a further guarantee of non-refoulment.

Whether or not you believe Mr. Assange is guilty of a sexual offence, whether or not you think he is a self-publicist deliberately resisting arrest, the fact remains that the authorities could use less restrictive means without compromising the initial investigation into the allegations regarding his sexual conduct in Sweden. Moreover, were the current UK safeguards on the EAW to be applied to Mr. Assange retrospectively, in particular the question of ‘judicial authority’ and ‘proportionality’, it is arguable that the existing EAW would be invalidated and the conditions resulting in Mr. Assange’s continued confinement would shift. It is also arguable that 10 months on, the Swedish Supreme Court view may well move closer to the dissenting judgment of Justice Svante Johansson, that the conditions of the investigation are now disproportionate. Finally, the Swedes could guarantee a right of non-refoulment to Assange, which ultimately appears to be ‘the real problem’ in the case (Letter to the Times of Dr. Robert Bruce-Chwatt, 8 February 2016).

Reasonable (and even judicial) minds have clearly differed on these issues, which suggests that the UN WGAD decision cannot fairly be described as ‘ridiculous’, ‘ludicrous’, or ‘so wrong’. No doubt views on this may be coloured by our particular position on the integrity of Assange’s himself. But human rights are not meant to favour the popular amongst us; they are meant to favour us all.

Liora Lazarus is a Fellow of St. Anne’s College and an Associate Professor in Law at Oxford University.

(Suggested citation: 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/))