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Liora Lazarus: Is the United Nations Working Group on Arbitrary Detention Decision on Assange ‘So Wrong’?

Liora LazarusThe 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 Zeitargues 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/))

54 comments on “Liora Lazarus: Is the United Nations Working Group on Arbitrary Detention Decision on Assange ‘So Wrong’?

  1. Bernard Keenan
    February 9, 2016

    Thank you for this. The press reaction was yet another disgrace to British journalism.

  2. ObiterJ
    February 9, 2016

    Thank you for this article which has addressed what I saw as an imbalance in the views expressed by Mr Rozenberg and some other London-based bloggers. The Working Group report deserved to be treated with more respect than, IMHO, it has received in some quarters. I took a look at it on my blog and have added a link to your article.

    I can see why Assange may have a well founded fear of persecution given the absence of an guarantee against refoulment to USA. As I understand it, the UK would have to agree to that though I suspect the British government would readily agree given its usual close alliance with USA in military matters!

    It would be interesting if Assange could mount fresh challenges to the EAW – (a) in Sweden (in the light of the time delay) and (b) in England on the basis of the now amended law.

    Having said all of this, and with respect to the working group, it remains to difficult to see the arbitrariness given that Assange has, at least in the UK, been afforded access to some of the very best lawyers and that his bail was set following fair judicial process before a High Court judge.

    Just a final point. Your article says little about the surveillance on the part of the Met. Police and the working group decision gives no actual detail of the methods used. Are these a violation of the embassy? I don’t know but it’s an interesting point.

    http://obiterj.blogspot.co.uk/2016/02/julian-assange-arbitrary-detention-look.html

  3. treisiroon (@treisiroon)
    February 9, 2016

    This is perhaps the best analysis of the UNWGAD decision I’ve seen. Both facts of the case and facts of applicable laws have been sorely missing in media and politicians’ commentary.

    • Sebastian H
      February 24, 2016

      DearLiora Lazarus:

      In your article you present the Assange view on the recent changes in legislation as it appears in the UNWGAD Opinion. I quote the first part below.

      “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.”

      It is astonishing that you mention Assange’s view, that there is a “binding decision of the UK Supreme Court in 2013” without informing your readers what this “binding decision” actually is. The case Assange refers to is Bucnys v Ministry of Justice, Lithuania. The issue to decide was if a Ministry of Justice was regarded as a “judicial authority”. The “binding decision” was:

      “s.35 This is all the more so, now that it is decided by Assange that the range can include both courts and public prosecutors.”
      “67. The conclusions I reach on these appeals are that:
      The European arrest warrant issued in respect of Bucnys by the Ministry of Justice of Lithuania at the request of the Vilnius City 1st District Court was a valid Part I warrant under the 2003 Act, and Bucnys’s appeal should accordingly be dismissed.”

      What is perfectly clear after UK Supreme Court decision is that courts, public prosecutors and Ministries of Justice can be regarded as “judicial authorities” and therefore they can issue EAWs. This means that Assange’s argument is false.

      The first appeal after the new legislation and the “binding decision of the UK Supreme Court” is Kandola v Germany. The EAW in the case of Mr Kandola was issued by a Public Prosecutor in Frankfurt, Germany. There was no argument that the fact that the EAW was issued by a Prosecutor would in any way stop the extradition. Kandola’s appeal was dismissed.

      I am frankly surprised that you, in an analysis of the UNWGAD opinion, failed to show your readers the true facts. Why is it that you leave this out? Assange’s argument here is false. For some reason the UNWGAD adopted Assange view as the truth in their opinion.

      If one should have any respect for the UNWGAD, and its opinions, it is important that the panel gets their facts right. Otherwise they will appear as just another Assange lawyer making false statement. And that is of no good to the UN.

      • Taxi Driver
        March 2, 2016

        re the cited case: https://archive.org/details/KandolaOrsVGeneralstaatwaltschaftFrankfurtGermanyOrs “I am frankly surprised that you” have failed to read the judgement. Kandola’s Section 12A claim was dismissed because he was deemed a serious “flight risk”, in that he would run the instant he became aware of the prosecutor’s investigation – Julian Assange was informed by the world’s media, then interviewed, then given permission to fly to Germany and to the UK, then granted bail after the EAW was issued – Kandola has NO RELEVANCE to Assange case. Further, that the two other 12A appeals (Droma and Ijaz), were upheld on proves that if the circumstances were the same today, Assange could not be extradited. It should be noted that Assange is still asking to be questioned in London and failing that is willing to travel to Sweden for questioning, provided assurances are made that he will not be extradited to the US. Similarly, in the Bucnys case: https://archive.org/details/BucnysOthersVMinistryOfJusticeLithuania it is the judgements upholding Sakalis and Lavrov’s claims that are relevant, and NOT Bucnys’ claim. Prosecutor Ny’s EAW (the charges of which hold almost nothing in common with her evidence) was not approved by a Swedish court (the “judicial body”), and therefore according the UKSC this means she cannot act as a “judicial authority”. It is hardly rocket science.

  4. Steve Peers
    February 9, 2016

    Sorry, but I think it’s genuinely shocking to suggest a ‘proportionality’ argument could be used regarding a sexual assault allegation. That clause was inserted to deal with stolen piglets, etc. Of course I am not suggesting his guilt – that should be decided on the merits after a proper investigation and (if if he is charged) trial. The committee seemed to be making a procedural point, which was weak enough. But you actually seem to believe it substantively.

    • Liora Lazarus
      February 9, 2016

      To be clear Steve Peers, I am not suggesting that the investigation should be dropped, but rather that it could have been conducted differently at this preliminary stage. I am not the only one who thinks this. On the question of the rights of rape complainants, you may want to read my appendix to the Stern Review: http://webarchive.nationalarchives.gov.uk/20110608160754/http:/www.equalities.gov.uk/pdf/stern_review_acc_final.pdf.

      • Steve Peers
        February 9, 2016

        The proportionality debate historically was about very minor crimes being pursued by means of EAWs, but if your point is not about substantive criminal law, but rather that some other route could have been pursued instead of an EAW in light of the stage of the investigation, then I can see the argument. It’s a different question whether that would have been feasible or whether Assange would have cooperated.

    • julio
      February 9, 2016

      Some facts:
      The previous prosecutor dropped the case stating that the interviews with the claimants was not describing anything criminal.
      It’s very rare that a prosecutor re-examine the decision of another prosecutor and even more rare that the old decision is overruled. This happens about ones a year in Sweden and 2010 it happened to Assange. What is the probability that something so rare just happens to occur to a famous person? And by knowing that the same prosecutor has not taken the same decision in cases with much more severe crimes with good evidence at the same time she decide to choose to change the decision in the Assange case is ridiculous. The interviews are in the public domain and easy to google (but they are in swedish). However, the interviews were not taped. The timeline does not hold up. The accusation origin in if Assange started to have sex with a sleeping person. They had consented sex several times during the night. In the morning she ate all food she had at home. She went to the store, sent some sms and met her brother who gave her a ride home. At home she prepared breakfast, they had breakfast and then she undressed and they had consented sex. All this happened between 8 and 9 in the morning. At 9am Assange started to have sex again with her and in the interview it’s stated that she was asleep but consented a seconds later. However, the timeline hardly permits that she was asleep. She should be preparing to go to work at this time. If she indeed was asleep it’s unlikely Assange would know about it (they just had consented sex minutes before) and in the end she also sent an sms to a friend stating she was half-asleep (i.e. half awake). Everything in this case has been managed out of normal procedure. If Assange indeed did know that she was asleep (and she was) then it seems impossible to prove in a court (if not corrupt). So all this unusual behaviour from the prosecutor just happens to happen in a case where proofs are absent and the “suspect” is famous? I find it hard to believe. Adding the enormous amounts of money invested and the highly unconventional threats of invading the Embassy of Ecuador and the measures taken against other whistleblowers(like forcing the president plane of Bolivia to land in Austria because of suspicions of Snowden beeing on the plane etc) makes the whole case very suspicious.

      From the start, this for sure was not a honeytrap. Everything has been too unprofessional for that. However, different parties have different interests and it’s a no-brainer to conclude that US is heavily involved in later stages. The prosecutor probably choosed Assange because he was famous and she wanted to change practice in Swedish court on what action constitutes rape (and she wanted media to be interested). Afterall, that is her mission at the “prosecution office of development” which is where she works. It has been highly embarrasing as a swede to see this total meltdown of the swedish justice system during the last five and a half years. It’s even more embarrassing to see how they manage the decision of the UN-… group and it has also been embarrasing to see how they have blamed everyone for their own lack of abillities.

      • Gavin Phillipson
        February 10, 2016

        I think it’s wholly improper that you should purport try to determine the merits of a rape case on the basis of hearsay evidence on a public blog. You have also made quite a serious accusation against the Swedish prosecutor on, as far as I can tell, no evidence at all. And for what it’s worth, all the UK courts that looked at this (and it went up to the Supreme Court) found that the facts alleged against Assange (and please note the word ‘alleged’) in the EAW would also constitute rape in English law.

  5. Kristian Schach Moller
    February 9, 2016

    Dear Liora,

    Thank you so much for giving a detailed version of the legal reasoning behind the UNWGAD opinion. (it has not been easy to find). I am still puzzled and after reading the opinion and many of the commentaries I think I favor the dissent opinion.

    Isn’t there a significant flaw in the opinion argument? It argues that the situation at the embassy is a prolongation of the continued deprivation of liberty. This suggests that the situation at the embassy is only a deprivation of liberty because the isolation and house arrest were. To claim the period in house arrest is a situation of arbitrary detention seems absurd. The house arrest is part of the judicial process and (I assume) within UK rule of law – can be challenged, predictable etc – you can argue whether it is deprivation or restriction of liberty and as you point out this is a grey zone, but surely the house arrest period cannot be arbitrary and therefore the opinion premise falls ? I wonder is the panel would have reached the same conclusion had Assange sought refuge at the embassy before he was detained in isolation – what do you think ? If it wasn’t arbitrary detention without the isolation and house arrest, then I would find it hard to argue that the current situation is.

    Also, Assange was in house arrest for 550 days in the UK. Why did he not consider extradition to the US as a risk in that period ? It seems the argument that he didn’t want to go to Sweden to answer rape charges because he faced risk of being extradited to the US looses some credibility. Assange was happy contesting the extradition judgements in the UK for 550 days and only sought asylum when he was forced to face the rape charges in Sweden. I would argue the risk of being extradited from the UK is greater (or at least the same) as it would be from Sweden ? If this is true and the risk is the same in the UK as it is in Sweden, then surely, the argument that he didn’t go to the embassy voluntarily but was forced in order to protect his human rights looses merit.

    Regards

    Kristian

    • Andy
      February 9, 2016

      I think the risk is much greater that he will be extradited to US from Sweden than from UK. It is much easier for UK to just accept such an extradition. US can easily pressure Sweden to do whatever they want.

    • Liora Lazarus
      February 9, 2016

      Dear Kristian, There is a lot of scope for a longer piece on this. I agree that the ‘continued liberty deprivation’ point is weak. But I also think that the initial context of the arrest doesn’t resolve the ongoing stand-off which the Swedes could now take steps to resolve. I would have reasoned this differently myself, on the basis that over time the conditions can become disproportionate to the objective sought. In the same way, the timing of Assange’s initial decision to seek asylum would presumably go to the absence of other legal options once the extradition judgement went against him, not to his fear of extradition. Regards, Liora

  6. spinninghugo
    February 9, 2016

    “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.”

    Yes it does.

    If the reason Assange had gone into hiding was threats of violence or death, then we could have argued that he was deprived of his liberty by the State.

    Going into hiding to escape due legal process is not being deprived of your liberty.

    If you have not marked your students essays for the week and you go and hide in a cupboard to avoid embarrassment, have you been deprived of your liberty? Would it be accurate to describe your liberty as contingent on your co-operation with angry students?

    Of course not.

    • wiseupwest
      February 9, 2016

      ‘If the reason Assange had gone into hiding was threats of violence or death…’.

      But that is precisely why he was granted asylum by Ecuador. He received publicly aired (TV) death threats from numerous people – both well known media pundits and govt officials in the US who believe he should receive the death penalty. https://www.youtube.com/watch?v=AylDiZet3fo

      Chelsea Manning is currently serving 35 years for her WikiLeaks revelations, and the US are engaged in an ‘unprecedented in size & scale’ investigation into WikiLeaks – an investigation which they themselves refer to in court documents as recently as a few months ago as still ongoing.

      Ecuador took 8 weeks to thoroughly investigate Assange’s fears and found that they constituted a credible threat, and it is on that basis that he was granted asylum in August 2012. (Ever since then, Ecuador has openly offered to facilitate the Swedish preliminary investigation. But it was only last year, after being rebuked by her own Supreme Court that the Swedish prosecutor made any attempt at all to respond to this.)

      And the WGAD found that it was unreasonable to brush Mr Assange’s fears aside without any consideration:

      “…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” (97)

      The nub of the findings is that the way the case was dealt with by the Swedish prosecutor was irregular from the start – from the issuing of a European Arrest Warrant (and not by a court) for the purposes of interviewing a suspect rather than because there was an existing indictment/charge –

      “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)

      This lead to all the other abuses of process – the prosecutor unaccountably refused to use any method of conducting the interview that would be normal under the circumstances – either by proxy; or by video link, phone etc; by UK police at a UK police station; by herself at the Swedish Embassy etc. Instead of an interview when he went to a police station in response to hearing about the warrant, Mr Assange was thrown into solitary confinement for 10 days…and so it goes on.

      Extradition was sought. And it was during Mr Assange’s extradition proceedings that serious flaws were discovered in the EAW agreement; it had not been drafted to achieve the effect parliament intended. Moreover these flaws were so contrary to justice that, because of the problematic nature of the extradition request in his very case, it has since been ‘drastically changed’

      “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” ” (97)

      So he is still held on the basis of defunct law which was changed as it was unjust, yet he is not to have any redress, according to the UK.

      The failure to even question Mr Assange, let alone lay charges, served neither justice for the accusers nor Mr Assange, and there was no good cause for the ‘substantial lack of due diligence’ on the part of the Swedish prosecutor – something her own Supreme Court also strongly rebuked her for.

      The findings make it clear that Mr Assange has offered everything short of what he believes would put him in considerable danger. He has even offered to go to Sweden if guarantees of onward extradition to the US were given (which some would see as a foolish offer, given the stakes).

      It is a common misconception in this case that it is Julian Assange who has held up proceedings. The WGAD make it plain that this is not the case – it is the Swedish prosecutor, and to this day, she continues to do so.

      • spinninghugo
        February 10, 2016

        None of this is even vaguely relevant to the legal question.

        Assange has gone into hiding to escape due legal process. He did so after exhausting the UK appeals process up to and including the Supreme Court.

        Is it even remotely plausible,as Professor Lazarus claims, that that means that Assange has been deprived of his liberty?

        Let it be assumed, arguendo, that you are right and that there were oddities about the Swedish procedure. Is that enough to make the argument serious?

        Of course not.

        The UNWG has embarrassed itself, embarrassed human rights professors (who made up the panel), and damaged the entire enterprise of human rights in the process.

        Those who value human rights should be distancing themselves from this nonsense as fast as they can, and not suggesting that there is any credibility to it.

        Other than Assange’s merry band of apologists such as yourself, we should do anything but laugh at it.

    • batesed
      February 11, 2016

      I’d certainly agree that the real weakness in the opinion is the WG’s failure to justify why this was detention/ deprivation of liberty in the first place.

      The problem is that this is not just a minor technicality, but is a threshold question. It is, as far as I am aware, central to the whole matter of whether the WG had jurisdiction in the first place (see the dissent). And if it did not (as there was no deprivation of liberty) then whether what occurred was arbitrary, excessive or harsh is not a matter for the WG.

      If there was no deprivation of liberty then what occurred could be of relevance (potentially) to other human rights claims eg inhuman treatment, inappropriate interference with private life, or, most likely, freedom of movement. But these are not in the direct remit of the WG. Had they been then the same arguments as to arbitrariness would be directed to the qualified nature of eg the right to freedom of movement.

      Such arguments can still be raised of course, under the HRA/ ECHR framework – except, of course, the UK has not ratified Protocol 4 (concerning freedom of movement [and I am assuming the EU law point is addressed by the EAW]).

      If A is claiming detention still, why does he not know resort to the HRA and plead Art 5(4)? Perhaps he will. If so, what?

      As I see it, the key issue is whether on the facts A was deprived of his liberty.

      Here there must be SOME circumstances when one is allowed to take refuge for fear of the consequences of arrest, and ensuing harm, with such refuge being transformed into a deprivation of liberty. So, the apparently voluntary nature of the detention can mislead- it may not be voluntary in reality.

      The question, of course, is whether the circumstances of Mr A appropriately fitted into the ‘some circumstances’ just referred to. That is what requires careful, considered analysis (but, as far as I can tell, the WG did not really address).

      On this last question, I would need to know more, but from what I see it does seem that Mr A’s case as to a deprivation of liberty is rather far fetched.
      – As far as is understand it, the legal regime that applies with respect to the EAW is compliant with the rule of law, and has been tested in the courts, even if it is not beyond criticism. (if that is not a fair assessment, then the reasoning that follows falls away).
      -It would seem then that the EAW’s enforcement justifies the UK authorities refusing to allow A to leave, and overtakes A’s claim that he is entitled to resist it
      – The basis that this is a justified voluntary confinement, the responsibility for which lies with the UK, is therefore defeated.

      None of this is to say that there may not be a great deal of controversy surrounding the diligence of the respective authorities in Sweden. They could be dragging their feet (I do not know) and making it worse than it already is for A, but, if there is no deprivation of liberty in the first place, this is not for the WG on Arbitrary Detention to try to resolve.

      • spinninghugo
        February 12, 2016

        For what it is worth, I completely agree.

        ‘Far-fetched’ is as polite as I would be prepared to be.

  7. Alan Robertson
    February 9, 2016

    Is not the point, that is completely obvious, is that Assange chose of his own volition to go to the embassy to avoid due legal process. How can the UK government then be accused of confinement. If Assange is a victim could not every accused criminal of the land do the same thing? Seems peoples politics causes them to lose objectivity.

    • Res Ipsa liquitor
      February 9, 2016

      Causation.

    • AFB65
      February 24, 2016

      No he did not, he did not choose embassy, he did choose Ecuador. Always those people of UK that neglect facts.

      UK did put him in jail, violating human rights. He got virtual home arrest, UK violated human rights.

      Was it possible for prsoecutor to question while Assange was a free man? Answer is yes.,

      So, tell me, why did UK put him in jail? Clear violation of human rights.

      But UK tells the world, we got EAW, and Befehl ist Befehl.

      Who are we to reason why?

      Classic examples of history.

      • Steve Jones
        February 24, 2016

        Of course it was possible for Assange to have been questioned as a free man. He was afforded that opportunity twice in Sweden, but failed to turn up at the agreed time. He then fled the country. Hence the EAW. As he also broke his bail conditions in the UK he does appear to be something of a “flight risk”.

      • AFB65
        February 24, 2016

        You believe states can choose for option A and tell the world we have chosen option A, and we forget option B.

        Option B was still there, so it is clear, states should have chosen option B. Would ever a human being does, when option B is there, states must choose option B.

        States are not to take a man’s freedom, when option B is still open.

        UK changed law and now accepts it:

        “(3)These are the specified matters relating to proportionality—

        (a)the seriousness of the conduct alleged to constitute the extradition offence;

        (b)the likely penalty that would be imposed if D was found guilty of the extradition offence;

        (c)the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.”

        Look at point C, Sweden does have other measures that are less coercive than the extradition of Assange.

        Talking about bail is meaningless, UK and Sweden did violate human rights, and so, a free man can go for his freedom.

      • Steve Jones
        February 25, 2016

        That would require a verdict in the ECHR which is the authoritative court on the matter. The UN organisation is just a tribunal. It has no judicial standing whatsover.

        So the route is open. Have Assange’s lawyers tried the ECHR route? I have read one story that they did and their case was ruled inadmissable.

      • AFB65
        February 26, 2016

        Only people with lows morals need a verdict.

        They other ones do know you do not put someone in jail for fun.

      • Steve Jones
        February 24, 2016

        You seem somewhat clueless as to human rights. Julian Assange was the subject of an EAW as he’d deliberately avoided being questioned on the matter of a serious allegation in Sweden. As such, he was arrested in the UK and placed on remand. Despite being a fairly obvious flight risk. he was given bail conditions, albeit rather restricted. During this period he was able to appeal against the EAW, a case that went all the way to the Supreme Court. All processes are subject to the requirements of the ECHR as written into UK law. His appeals failed. He then decided to breach his bail conditions.

        As to whether his human rights have been breached, there is a proper body for deciding that with the appropriate judicial powers, and that’s the European Court of Human Rights

  8. Steve Jones
    February 10, 2016

    “Assange has tried but failed to challenge the European Arrest Warrant against him in Sweden and in the UK. ”

    No, he didn’t try but fail to challenge the EAW. He did challenge it in the highest court of law in the country. He just failed in that challenge, which is a very different thing to being prevented from making a challenge which would have implied that there was no appeals procedure. The issues you’ve outlined have therefore been tested in court. Further to that, there is another way that this could be challenged via the ECHR.

    In any event, this is all down to due process of law, and should surely not be subject to political interference, which is what the Assange camp would appear to favour. It’s far from clear to me how Assange’s legal team’s wishes could be enacted without this as, surely, for the judicial path to b change it has to be done via legal means. Possibly the Home Secretary has some discretion on expelling people from the country, but it’s not obvious that’s possible under the current conditions with a legally binding arrest warrant in place.

    Of course as this deals with EAW and it’s compatibility with the human rights legislation, it is very clearly something that would be of relevance to the ECHR, Why then have Assange’s lawyers not gone down that path?

    • ben
      February 12, 2016

      “this is all down to due process of law and should surely not be subject to political interference, which is what the Assange camp would appear to favour”

      political influence like when a case judged by a prosecutor to be non-existent was re-opened after direct interference by a Swedish politician? Or like when the Prime Minister wrongly claims Assange is ‘wanted to stand trial in Sweden’? or like when Ian Duncan Smith almost ordered a breach of a sovereign nations embassy in a panicked 3am raid?

    • oojamaflipper
      February 12, 2016

      “this is all down to due process of law, and should surely not be subject to political interference, which is what the Assange camp would appear to favour.”

      Political interference like when a Swedish politician interferes and re-opens an inquiry that a prosecutor had deemed was no case to answer?
      Or like when the Prime Minister wrongly claims that Assange is ‘wanted to stand trial in Sweden’?
      Or like when Ian Duncan Smith all but ordered a full scale siege of a sovereign nation’s embassy for a man not even charged with a crime?
      I could go on.. and on..

      and there was no due process. the EAW didn’t even require prima facie evidence, this is a lack of due process which has been challenged by various groups.
      Ny has not used the Mutual Legal Assistance framework available to her and has inexplicably stalled the investigation by refusing to go to the embassy until last year, when she finally capitulated in theory but has still not been. It is incumbent upon the prosecutor to carry out the interview, she is able to do that at the Embassy, so all this bluster about how awful it is that Assange is unwilling to go to Sweden (without assurances that he would not be then handed over the the US) is utterly moot, and you make yourself look rather stupid to ignore this point.

      • Steve Jones
        February 12, 2016

        You appear to have confused IDS with William Hague, not that it appears there was ever any real chance the 1987 act would have been invoked. Also, politicians expressing opinions in support of due process of law (as Cameron did, albeit with his characteristics imprecision of language) is not interfering with due a process. Politicians have also long been able to urge the investigation of perceived crimes (as Tom Watson did over the Leon Britain episode, among others). The point is that the actual operational decisions to be made are the job of the police and, prosecution decisions by the CPS with judgements through the court system. To argue, as you seem to do, the the EAW is some form of injustice, does not stop it being due process. It just happens to be your opinion, and it would be for the Supreme court and the ECHR to decide on its legality.

        In any event, the point remains. By what legal means could the government decree that the EAW on Assange could be dropped? It would surely be in direct defiance of the judicial system, and fall outside of the Home Secretary’s discretionary powers. Or am I missing something? Perhaps somebody could explain to me how either the judiciary or the government could ignore the extradition request?

      • oojamaflipper
        February 13, 2016

        yea, Hague.. doh!

  9. Carol Harlow
    February 10, 2016

    I too think that Liora’s measured inquiry and comment o this case is a valuable counterweight to the majority media comments, though I cannot agree that Assange’s treatment is or was arbitrary. But at the heart of this controversy are the unbalanced arrangements for extradition to both the US and inside Europe via the EAW. These are in urgent need of reform.

    • AFB65
      February 24, 2016

      They are already reformed, Assange is not on the list anymore.

  10. Liora Lazarus
    February 10, 2016

    My argument proceeds from the distinction between the definition of a ‘deprivation of liberty’ and the question of whether that deprivation is ‘arbitrary’. On the first question, the volitional issue is key. To argue that Assange went to live inside an embassy for 3 years on his own free will is to miss the factors that led to his decision to do so, and to his decision to remain inside. For something to be volitional it has to be done in the absence of any coercive factors. Clearly those coercive factors are present. But to repeat my point: “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”. The question then becomes how far the measures taken in pursuit of the preliminary interview prior to charge are proportionate to the aims pursued. The fact that Assange is resisting arrest is a clear factor to be taken into account in evaluating the proportionality of the Swedish and UK authorities coercive actions. But Assange is also offering to co-operate with this preliminary investigation in other concrete ways. The failure of the Swedish and UK authorities to pursue these alternatives then becomes relevant to the evaluation of the proportionality of their response as a whole, and to the question of whether the deprivation of liberty is arbitrary.

    • Steve Jones
      February 10, 2016

      These issues were surely dealt with in the appeals procedure and it was decided that the EAW was issued properly under the right conditions. I’m not sure it’s up to a suspect to dictate the terms under which they will deal with judicial authorities, especially when this has already gone through the judicial system.

      • Liora Lazarus
        February 10, 2016

        The point is the issue of proportionality wasn’t dealt with in the UK appeals procedure. It was explicitly rejected in Assange v The Swedish Prosecution Authority [2012] UKSC 22 (https://www.supremecourt.uk/cases/docs/uksc-2011-0264-judgment.pdf). See para 85 to 91. See also my post on subsequent changes to the EAW procedure which haven’t been applied to Assange retrospectively, and also the view on the the Swedish judicial approach.

      • Bernard Keenan
        February 10, 2016

        I’ll add the necessary qualifications first: I do not think the investigation is a conspiracy, nor do I think Assange is unquestionably right. He should be investigated. I also think that given what has happened to other enemies of the state in America, he has a legitimate reason to fear onward extradition to the US, and I think that if that is just a red herring then the Swedish authorities should have acted to negate it long ago. Why am I saying this first? Because this is obviously as much a political matter as a legal one, and it is politically possible to question the actions of states in this matter without being an apologist for the crimes he is accused of, or being a conspiracy theorist.

        Cleaving to the positive law argument that the judiciary decided on the procedure that was valid in law at the time of the decision presupposes a commitment to the legitimacy of the system that promulgated the law, a commitment that neither Assange, nor the government of Ecuador, shares. A cursory glance at Wikileaks should make that obvious. So simply saying that this was due process because it was valid law at the time of the decision is to exclude quite a lot of relevant context.

        As the UN Working Group potentially has to decide on issues of detention in any state, it can’t start from a presumption that the legal regimes of the EAW, Sweden, and the UK are inherently valid in whatever they decide. So it takes a wider view of arbitrariness.

        Finally, while I take the point that suspects shouldn’t dictate procedure, so far there appears to be no strong reason why the normal procedure by which Sweden interviews suspects in the UK before formally charging them has been departed from. UKSC was not in a position to rule on that question. I don’t know about JR in Sweden but there would certainly be a strong case against the CPS were they to do what has gone on here.

  11. batesed
    February 11, 2016

    Reblogged this on ukstrasbourgspotlight and commented:
    This UK Const Law Blog posting on Assange’e ‘detention’ plus the discussion after it has certainly generated lots of interest and enthusiastic responses. I offer my ‘penny’s worth’ (for what value that is) someway down in the comments section.

  12. Cassandra
    February 13, 2016

    I just wanted to append this chronology over what the Swedish prosecutor have (not) done, for those who might be unaware (I’m not sure how much this has been covered in the UK press):


    20/08/10: The women contact the police in order to force Assange to be tested for STDs. A criminal complaint is filed. Assange is arrested in his absence during the night (this is standard procedure when a complaint is made during the night).

    21/08/10: The day after chief prosecutor Eva Finné cancel the arrest order saying she can see no reason to suspect rape has been committed.

    30/08/10: Chief prosecutor Marianne Ny decides to pick up the case again. A preliminary hearing is held with Assange who cooperates fully.

    27/09/10: Nothing has happened for almost a month and Assange leaves Sweden as he has planed for a long time. An arrest warrant is issued the same day by Marriane Ny, she wants to interview him again.

    18/11/10: The European arrest warrant is issued. Assange is now in London.

    19/06/12: The UK court decide the EAW is legal and Assange seeks political asylum at the Ecuadorian embassy (out of fear of refoulment to the USA).

    16/08/15: Three years later three out of four of the allegations are dropped because the statutes of limitations have been exceeded. The Swedish prosecutor has still not interviewed Assange in London nor charged him with any crime. Sweden has not issued any assurance of non-refoulment to the USA.


    Several things strike me as odd here:

    1. The story is leaked to a Swedish tabloid the same night the complaint is made, this is not common in Sweden. Headlines are made around the world.

    2. The fact that the first prosecutor dismissed the case indicate it is at best a very weak case. Eva Finné is a well-renowned and experienced prosecutor so there is no reason to believe her decision was unreasonable.

    3. That another prosecutor picks up a case again is unusual but not unheard of.

    4. After the preliminary hearing with the suspect, the prosecutor would normally either charge him with a crime or dismiss the case but in this case the prosecutor does nothing for several weeks.

    5. A month later Marianne Ny issue an arrest warrant the same day Assange had scheduled to leave Sweden. She wants to interview him again. This is also the reason she later issues the EAW. If there was not enough evidence to charge Assange after the preliminary hearing a month ago it is hard to understand what new evidence Marianne Ny hope Assange will share that would change the situation?

    6. Assange’s luggage with several hard-drives and laptops disappears during the SAS flight from Sweden. This is highly unusual for a direct flight to another Schengen member state.

    7. Assange has repeatedly offered to be interviewed in the UK with the help of the UK police, or via video-link, during his house-arrest and in the embassy. Marianne Ny has refused for several years now and she has failed to give any explanation why. As mentioned above she has been criticized for this by the Swedish supreme court when the arrest warrant was challenged.

    8. Assange has offered to come to Sweden and cooperate fully with the Swedish authorities if Sweden offer an assurance of non-refoulment to the USA, yet no such guarantee has been made and no explanation have been given as to why.

    So I think it’s fair to say that it’s the Swedish government and prosecutor who are obstructing. And they are ignoring the concerns of the Ecuadorian government and Assange of persecution in the USA. They are now also arrogantly dismissing the UN Working Group’s ruling, undermining further important human rights work.

    https://www.hrw.org/news/2016/02/05/assange-following-rules-or-flouting-them

    • Sebastian H
      February 15, 2016

      Cassandra,

      In order to understand the case it is important with a chronology. In yours there are many important events left out. To understand the prosecutor’s actions you have to be aware of what Assange have done. This chronology includes most of Assange’s and the prosecutor’s actions. The dates are in most cases correct. When I am unsure of a date I will mark it with a *:

      11/08/10*: Assange arrives in Sweden and gets a pop star reception. He’s interviewed by the major newspapers and networks. He lives in AA’s apartment.

      13-14/08/10: Meets with AA. Sex.

      14/08/10: Assange delivers speech at LO-borgen. Meets with SW. The couple leaves together and spends some time in Stockholm. Later a crayfish party in AA’s house.

      16-17/08/10: Assange meets with SW in the evening. The couple leaves for SW’s apartment in Enköping, 80 km northwest of Stockholm. Sex. In the morning Assange misses a meeting. The meeting is re-scheduled.

      20/08/10: Assange moves out of AA’s flat. The women contact the police in get advice “on how to proceed”. Two criminal complaints are filed. Assange is arrested in his absence during the night (/this is standard procedure when a complaint is made during the night).

      21/08/10: The day after chief prosecutor Eva Finné cancel the arrest order and stops the preliminary investigation (nedlägger förundersökningen) regarding rape. Saying she can see nothing that supports the idea a rape has been committed. One of the alleged victims is interviewed over phone.

      23/08/10: The two women are entitled to public legal support (målsägarbiträde) by Stockholms Tingsrätt (district court).

      24/08/10: Assange is entitled to public defense counsel by a court decision. Proves he was at the time “skäligen misstänkt or misstänkt på sannolika skäl”. Read charged with a crime according to EHCR definition.

      26/08/10*: Counsel for the alleged victims asks for a review (överprövning) of prosecutor Eva Finné’s decision to stop the rape investigation.

      29/08/10: (Date not confirmed) Eva Finné sticks to her decision. The case is then moved up to next prosecutor of higher rank, Marianne Ny. Stanadard procedure.

      30/08/10: Assange is interviewed with his defence counsel present regarding the crime molestation.

      01/09/10: Chief prosecutor Marianne Ny overturns Eva Finné’s ruling. The preliminary investigation is re-opened. Three more charges are brought.

      02/09/10: Assange comments on the facts that the investigation is re-opened and he is charged three more crimes.

      08/09/10: Asssange asks for new public defence counsel. Björn Hurtig is appointed. At this point it is obvious that Assange is charged since he is by a court given new defence counsel. If you are not charged, you will not receive public defense.

      15/09/10: Björn Hurtig asks Ms Ny if there were “any force measures” against Assange since he wants to leave the country for a period of time. Ny responded, no force measures in effect.

      21/09/10: Ms Ny contacted Björn Hurtig (texts and phone) and asks for an interview with Assange, preferably on the 23rd.

      22/09/10: Hurtig reports that he is unable to contact Assange. A new date for interview set, 28/09/10.

      22-27/09/10: Hurtig is unable to get in touch with Assange.

      27/09/10: When he reports to Ny she informs him that she might have to arrest Assange. Assange is arrested. Assange leaves Sweden for Berlin. Meets Stefania Maurizi, journalist, in Berlin. No mentioning of lost computers.

      28/09/10: Assange calls Hurtig from Berlin and informs him about lost luggage. No mention of computers. Asks Hurtig to report the lost luggage. Hurtig advices him that the standard procedure is to report losses at the airport.

      30/09/10*: Hurtig calls Ny and says Assange could come in for an interview on 10/10/10 (Sunday). Response, it is preferred if he could come in earlier since Ms Ny knows Assange is scheduled to speak at a conference 06/10/10 and take part in a demonstration 09/10/10.

      05/10/10: Ms Ny contacts Hurtig to set a for an interview for 06/10/10.

      06/10/10: Assange is scheduled (since August 15) to speak at a conference on Afghanistan. Assange does not show up. No explanation given to the organizers.

      09/10/10: Assange is to take part in a demonstration. He does not show up.

      13/10/10: The “theft” of computers is reported for the first time in an odd self proclaimed news-agency, Nyhetsbanken. The source for the information is not to be found. The man behind the news-agency “does not remember” exactly where he got the information.

      Later in October. Ny and Hurtig discuss dates for interviews. Hurtig asks Assange to come to Sweden for interviews. Assange demands to be interviewed in London over phone or video on the condition that the full investigation against him is disclosed in advance. And it should be in English.

      Early Nov: Ny warns Hurtig that if Assange does not come for an interview, she will have to go to court and get a detention order.

      15/10/10: Hurtig get the information that a Assange will be detained by Stockholms Tingsrätt. The court date is 18/10/10.

      18/11/10: Stockholms Tingsrätt issues a detention order for Assange

      24/1010: The order is challenged. Svea Court of Appeal upholds the detention order.

      26/10: The order is challenged in Supreme Court. The case is dismissed.

      02/12/10: An EAW is issued.

      07/12/10: Assange is arrested in London.

      8/12/10: In a hearing Assange is denied bail since he, when asked for his address, submitted a post box in Australia. Judge Riddle did not like the prank and sent him to prison.

      14/12/10*: Bail hearing. On 16/12/10 bail was granted.

      15/01/11*: Preliminary hearing

      7-8/2/11: Extradition hearing. Assange’s argument were shredded since what most of the witnesses stated was based on false information. Assange claimed Ms Ny had not taken any measures to interview Assange while he was in Sweden. Assange does not argue in court that he is very concerned that he will be re-extradited to the US.

      24/2/11: Ruling. Assange lost. Björn Hurtig was labeled an unreliable witness.

      3/3/11: Jennifer Robinson confirms that Assange had demanded the disclosure of the full investigation prior to take part in any interviews. She also states Assange lost his luggage on his flight to Berlin in September. Brief to Australian MPs.

      March or April: Hurtig is warned by the Swedish Bar Association for his performance in the extradition hearings

      12-13/7/11: Hearing High Court. The fear of being extradited to the US is not argued.

      02/11/11: Ruling. Assange to be extradited. Appeal to Supreme Court.

      08/12/10*: Supreme Court rule they will hear if a prosecutor is to be regarded as a “judicial authority”.

      01-02/02/12: Supreme Court hearing. Issue if a prosecutor is regarded as a “judicial authority”.

      30/05/12: Assange appeal dismissed. A prosecutor is regarded to be a “judicial authority”.

      19/06/12: Assange steps into Ecuadorian Embassy.

      16/08/15: Three years later three out of four of the allegations are dropped because the statutes of limitations have been exceeded. The Swedish prosecutor has still not interviewed Assange in London.

      Final comment. I could have made some errors on the dates above. It was a some time ago that I was interested in the case. If someone questions the dates I will be happy to check my notes in order to confirm exactly when something actually took place.

      • Cassandra
        February 19, 2016

        Yes you are right, naturally one can add more facts, I am sure you have not mentioned all relevant facts either. I tried to limit myself to easily verifiable facts I am familiar with and that might be relevant to the question whether the Swedish Prosecutor have done enough to try to hear Assange in Sweden and the UK. I only hope to encourage those who are quick to dismiss the UN opinion to take a look at the evidence themselves before jumping to conclusions.

    • Kim Olsson
      February 17, 2016

      Dear Cassandra,

      According to Judge Howard Riddle’s ruling following the extradition hearing on the 7-8 of February 2011 at the City of Westminster Magistrate’s Court, the Swedish prosecutor made several attempts to interview Julian Assange, through his lawyer, while he was in Sweden. A transcript from the interview with Assange’s Swedish lawyer, Mr Hurtig, revealed that he was aware that the case had been re-opened on the 1st of September 2010 after an appeal by the lawyer representing the two alleged victims.

      From the 21st of September to the 27th of September, the Swedish prosecutor was in contact with Assange’s lawyer to organise a date for Assange’s interrogation. Julian Assange’s failure to respond to those request for nearly a week lead the Swedish prosecutor to issue a domestic detention order against Julian Assange. On the 27th of September, 2010, 9:11am, Assange’s lawyer was notified as well as the Australian embassy, of the detention order. That very same day, Julian Assange left Sweden.

      For nearly two whole months while Assange was in the UK, he refused to return to Sweden for interrogation after repeated attempts by the Swedish prosecutor. As a result, an EAW was issued on the18th of November against Julian Assange.

      Sincerely,
      Kim Olsson

      • Cassandra
        February 19, 2016

        Kim, during the last five years the Swedish prosecutor has had many opportunities to interrogate Assange. For example when he was kept in UK jail, or during his time in housearrest and later at the Ecuadorian embassy. I’m not sure how long he was in house arrest, but it was for many months. It would have been easy for Marianne Ny to interrogate him with the assistance of British police.

        And as pointed out above, even the Swedish Supreme Court has criticized the prosecutor for this.

  13. Phil
    February 15, 2016

    Thanks, Liora, for a fascinating exposition of what the WGAD may have been thinking – in particular, for separating out the two elements of the opinion (‘deprivation of liberty’ and disproportionality) and making clear that neither of them has a clear-cut threshold.

    I think there’s a problem with any argument that relies so heavily on dissenting judgments and subsequent changes to regulations – if the majority had ruled differently, if the change had been made earlier… and if I had wheels I’d be a bus. Perhaps (bearing in mind Bernard Keenan’s comment above) a UN working group can properly take this kind of Olympian view – searching among the dissents and reversals for the true form of the Law – but if that was the approach they were taking you’d surely expect a few remarks about how things should be changed more generally: for instance, to the effect that this EAW should be disapplied, EAWs in general should be applied only if issued by a nationally competent authority, and member states which apply EAWs more freely should bring their regulations into line with Britain.

    There’s also a problem with the two legs of the opinion, which is that they each depend on the other. Disproportionality is only at issue in the context of a deprivation of liberty, but the existence of a deprivation of liberty can only be made out through an argument about the abuse of legal process. Assange is complaining about a deprivation of liberty legally disproportionate to the charges facing him, but that deprivation of liberty only exists if we first accept that measures taken by the UK and Swedish authorities were legally disproportionate to the charges facing Assange, to the point where his inability to evade the process without voluntarily restricting his own liberty amounts to deprivation of liberty. I agree that the Swedish authorities really ought to find a way of interviewing him in his current situation (although I’m not sure we’re hearing the whole story about their failure to do that). But if, that said, we take the position that due process has pretty much been served – given that majorities do generally overrule dissents, and changes to regulations don’t apply retrospectively – the argument from disproportionality falls; and if that falls, the deprivation of liberty itself falls. Or so it seems to me (IANAL).

  14. Elvira Dominguez Redondo
    February 15, 2016

    Thank you Liora Lazarus for engaging properly with the opinion of the WGAD rather than joining the frenzy to undermine, not only the opinion, but the Working Group. It has been disheartening to watch how other ‘experts’ have joined in the party of deauthorizing the Group rather than arguing the decision in any depth. My own contribution regarding this (although not engaging with the content) is here: http://ilg2.org/2016/02/14/the-assange-saga-who-does-the-working-group-on-arbitrary-detention-represent/

  15. Sebastian H
    February 15, 2016

    Several things strike me as odd here:
    I am not of the same opinion. My comments are in your text and it is my hope it is easy to read.

    1. The story is leaked to a Swedish tabloid the same night the complaint is made, this is not common in Sweden. Headlines are made around the world.

    My comment:
    It is not yet confirmed it is a leak. Someone (nobody knows yet) got hold of the story and tipped a number of newspapers and news agencies in Sweden. Expressen was the only newspaper that somehow got the prosecutor in charge to confirm that Assange was arrested. It is also very common that important people parade in the press. Assange is no exception.

    The only confirmed leak in this story is the leak of “Häktningspromemorian”. It is leaked from Mark Stephens office.

    2. The fact that the first prosecutor dismissed the case indicate it is at best a very weak case. Eva Finné is a well-renowned and experienced prosecutor so there is no reason to believe her decision was unreasonable.

    My comment:
    Eva Finné did not have the same material as Marianne Ny when she made her first and second ruling in the case. How different prosecutors value material is no good way of deciding whether a case is weak or strong.

    I do not think the case is very strong. But I have to admit that I don’t have all the relevant material. There are a number of interviews with the alleged victims that are not in the public domain. I do think there is a case against Assange.

    What is most intriguing in this case is Assange’s defense. I have never seen anybody defend himself so completely foolishly as Assange has from day one. It is just a long series of bad decisions. And this is not the end yet.

    3. That another prosecutor picks up a case again is unusual but not unheard of.

    My comment:
    I don’t know where you get your information. It is not at all unusual. It is standard practice in a review of a prosecutor’s decision. If the prosecutor which decision is on review sticks to her decision the case is passed up to a higher level for decision. If there is a new ruling a new prosecutor will be appointed. If, after a change of the ruling, the case was referred back to the original prosecutor I would be worried.

    4. After the preliminary hearing with the suspect, the prosecutor would normally either charge him with a crime or dismiss the case but in this case the prosecutor does nothing for several weeks.

    My comment:
    This is not true. Assange is charged with a crime according to the EHCR definition. In Sweden it is impossible to get a public defense counsel without being charged. Assange got his counsel on 24/08/10. On 08/10/10 he got a new public defense counsel. It was by a court decision in Stockholms Tingsrätt. Obviously the court realized that Assange was charged. It is still a mystery how people can claim that Assange is not charged. I include the High Court here. They somehow came to the conclusion that Assange is accused but not charged. A very peculiar position. I am certain that in the future this will be sorted and that ECHR position will be regarded as the correct one.

    5. A month later Marianne Ny issue an arrest warrant the same day Assange had scheduled to leave Sweden. She wants to interview him again. This is also the reason she later issues the EAW. If there was not enough evidence to charge Assange after the preliminary hearing a month ago it is hard to understand what new evidence Marianne Ny hope Assange will share that would change the situation?

    My comment:
    I am sorry. Your argument here is confusing. Assange was on 30/08/10 interviewed because he was charged with the crime molestation. After that interview, on 01/09/10 he was charged with three more offenses, rape was one of them. The preliminary investigation regarding rape was re-opened and the prosecutor wanted to interview Assange of these crimes. When the prosecutor on 21/09/10 wanted to interview Assange, Assange went uncontactable. For a total of 6 (six) days Assange hid in Sweden before he left the country.

    It is obvious that Assange has left Sweden in order to get away from police interviews. He has still managed to avoid being interviewed about the three crimes he was charged with on 01/09/10. Assange can say whatever he likes on this. The fact is that he did leave and has not yet returned against of his Swedish lawyers advice.

    6. Assange’s luggage with several hard-drives and laptops disappears during the SAS flight from Sweden. This is highly unusual for a direct flight to another Schengen member state.

    My comment:
    It is known that Assange lost his luggage on the flight to Berlin. It is not known what the luggage contained. In his first report to his defense counsel Hurtig there is no mentioning of lost computers. In Jennifer Robinson’s brief to the Australian MPs in March 2011 there is no mentioning of stolen computers.

    Lost luggage is not out of the ordinary. I’ve lost luggage on many occasions. What is extraordinary is that a person after losing his luggage waits almost three years to report the loss to the police. Assange claims he lost his luggage on September 27 2010 on a flight to Berlin. He does not report it until 09:44 on September 3 2013. It took Assange 707 days to make a police report. What is of interest is that Wikileaks and Assange have not commented on the supposed theft prior to the police report.

    One have to bear in mind is that according to the carrier’s rules carrying computers in checked luggage is forbidden. To me it is ridiculous that a person so concerned about his safety as Assange claims that he had three computers in his checked luggage. Putting important stuff in your checked luggage is asking for it to be lost.

    7. Assange has repeatedly offered to be interviewed in the UK with the help of the UK police, or via video-link, during his house-arrest and in the embassy. Marianne Ny has refused for several years now and she has failed to give any explanation why. As mentioned above she has been criticized for this by the Swedish supreme court when the arrest warrant was challenged.

    My comment:
    Assange has said that he is willing to be interviewed ON THE CONDITION THAT THE WHOLE CASEFILE IS DISCLOSED in advance. No policeman or prosecutor in his/her right mind would give the whole casefile in advance to a person that is to be interviewed for the first time. In Sweden, the whole casefile is not disclosed until the “slutförhör”, end interview just prior to the prosecutor to decide if the person should be indicted. Assange has never agreed to be interviewed by the police without ridiculous conditions.

    8. Assange has offered to come to Sweden and cooperate fully with the Swedish authorities if Sweden offer an assurance of non-refoulment to the USA, yet no such guarantee has been made and no explanation have been given as to why.

    My comment:
    Sweden, as most countries in the world, is bound by international treaties. Sweden cannot in advance offer one person protection against all possible charges. This is explained countless times.

    What is more important is to look at the facts. Sweden has not in 60 years extradited a person to the US suspected of political or military offenses. Not one.
    My view is that Assange is using his “I am afraid of being extradited to the US” as a good sounding excuse to face justice.

    Cassandra:
    So I think it’s fair to say that it’s the Swedish government and prosecutor who are obstructing. And they are ignoring the concerns of the Ecuadorian government and Assange of persecution in the USA. They are now also arrogantly dismissing the UN Working Group’s ruling, undermining further important human rights work.

    My comment:
    I know your opinion. My view is that the only person who is obstructing is Assange himself. And he is getting support from the Ecuadorian government. Assange’s and the Ecuadorian government’s concerns are not important. Facts are.

    If Assange was so worried about his eventual extradition to the US how come he did not voice this fear in the extradition hearings? Why did wait until the final verdict in the Supreme Court to flee into the Embassy? If there is a risk of extradition to the US from Sweden one has to acknowledge the fat that the risk is greater in the UK. In 60 years not one person has been extradited from Sweden to the US charged with military or political offenses.

    The UNWGAD’s opinion is remarkable in many ways. I also find it very interesting that Liora Lazarus mentions the dissenting opinions in the Supreme Court regarding whether a prosecutor is to be regarded as a “judicial authority”. The ruling in the Supreme Court makes it clear. A prosecutor is to be regarded as a judicial authority. It is even more clear if one reads the verdict in the Bucnys case:

    “As regards the fourth reason, I also agree with Lord Dyson (para 159) that the assumption in article 6 that there may be a range of judicial authorities from which to chose that which is to be competent to issue European arrest warrants says nothing significant about the scope of the concept of judicial authority. This is all the more so, now that it is decided by Assange that the range can include both courts and public prosecutors.”

    That a prosecutor is regarded as a “judicial authority” is evident from the Kandola case 2015. What is even more interesting with the Kandola case is that for the first time the new legislation in extradition law was before High Court. If one bothers to read the verdict it appears that Kandola’s case is similar to Assange’s. Kandola was extradited under the new rules regarding extradition. This is contrary to the UNWGAD’s opinion. They state that Assange would not have been extradited to Sweden. See s.98, point 5.

    “(5) with regard to the legality of the EAW, since the final decision by 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).”

    It is obvious that the UNWGAD got their facts wrong on many points. If you get your facts wrong it normally means that your opinion is wrong too. I find it extremely remarkable that a UN “expert group” is unable to verify if what one party claims is true. If the opinion of the UNWGAD is “ridiculous” or not I have no opinion. I am more concerned that they didn’t get their facts right and therefore their opinion is wrong too.

    • Sebastian H
      February 16, 2016

      I am sorry for not making it clear that I commented on Cassandras comment.

      I also realize that my math at the time of my comment wasn’t that good. It actually took Assange 1 071 days to report the “stolen computers”.

      • AFB65
        February 24, 2016

        Sebastian H You are ignoring human rights. Was/Is it possible to question Assange as a free man? Answer is yes.

        So, UK and Sweden were not allowed to start extradiction, it is so easy, when some does understand human rights.

        You state UK would ignore human rights again? I’m not surprised.

    • Cassandra
      February 19, 2016

      Sebastian H, the question here is whether the prosecutor has acted diligently and proportionately. Assange is a colourful individual, it is hard to not have a personal opinion about him considering this case and his work with Wikileaks, but it shouldn’t matter. Sweden and the UK are not allowed to ignore his human rights even if he is a political inconvenience or some consider him unsympathetic.

      ”Assange has said that he is willing to be interviewed ON THE CONDITION THAT THE WHOLE CASEFILE IS DISCLOSED in advance.”
      You forget that Assange was in the custody of UK police and in house arrest for several months. Assange has not been In a position to dictate terms. Marianne Ny has had several opportunities to hear Assange in the UK with the assistance of UK police under whatever conditions she finds appropriate. After that he has been in the Ecuadorian embassy. The government of Ecuador has said they are willing to assist with hearing him there (I’m sure the situation is an inconvenience for them too). However the Swedish prosecutor has to respect Ecuadorian law of course.

      Marianne Ny has been criticized for failing to hear Assange by the Swedish Supreme Court as well.

      I am confident the WGAD has considered all the facts that have been brought before them by the involved parties. I’m not sure what facts you think they got wrong?

      • Sebastian H
        February 20, 2016

        Dear Cassandra,

        From your comment: “Assange has not been In a position to dictate terms.”

        From your response it seem like you are unaware how Mutual Legal Assistance actually works. In order to interview a charged person the person has to consent to the interview. This means effectively that Assange, all the time while in England, until he fled to the Ecuadorian Embassy effectively dictated the terms. This is confirmed by his lawyer Jennifer Robinson in her “Brief to Canberra meeting of MPs re Julian Assange”. In section 37 you will find:

        “Second, demands must be made of the Swedish authorities to ensure that, if Julian returns to Sweden, that his human rights will be protected. These include:

        • The evidence in the case be disclosed to him in English, as is Sweden’s obligation under the European Convention on Human Rights. Full disclosure of the police file, including the exculpatory evidence such as the text messages, must be provided.

        This request – made in November (actually starting in October my comment) when an international arrest warrant was being threatened and extended by us to Mr Hurtig as condition precedent to Julian returning/being interviewed – has still not been complied with. “

        It is evident that Mr Assange never ever has asked to be interview without conditions. Conditions no sane prosecutor would agree with. That is the reason he is still not interviewed. While in Sweden he was booked twice for interviews. He remained “uncontactable” claiming he feared being monitored by US dark forces. As soon as he left Sweden for Berlin he called his lawyer to moan about lost luggage. And, what is important, for some reason he forgot to inform his lawyer that the luggage contained computers. It took him 3 years to report the theft to the police.

        What is even more amazing is that Mr Assange claims that he hasn’t been charged. If so he has no right to any information of the police files. If he acknowledges that he is charged he has the right to the case file without the parts that are detrimental to the investigation. This does not stop Mr Assange. What he wants is to be treated as if he was indicted whie still refusing to accept he is charged. A person that is indicted has the right to get a copy of the complete police file.

        Mr Assange claims that he would not be extradited if his case was tried today. UN WGAD agrees. This is one thing the panel got completely wrong. If you want me to prove to you that the UN WGAD is wrong here, along with Mr Assange, I would be happy to do so. It is obvious that the panel have not made any investigations in order to verify if the claims by Mr Assange are true. According to the panel’s code of practice they do not make any investigations of their own. They base their decisions only on hearing the parties written arguments. And from that they form their opinion.

        The opinion from the panel is filled with factual errors. And since it is, I cannot take it seriously. What is even worse. My trust in UN as a whole has vanished. How can anybody trust a panel that does not make any effort verifying if allegations/claims are factually true. The only conclusion possible is that the panel’s opinions are arbitrary accusations.

    • AFB65
      February 24, 2016

      “3)These are the specified matters relating to proportionality—

      (a)the seriousness of the conduct alleged to constitute the extradition offence;

      (b)the likely penalty that would be imposed if D was found guilty of the extradition offence;

      (c)the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.”

      There are simple measures that Sweden can do that would be less coercive than the extradition of D.

      So it is clear, no extradition,

  16. Kim Olsson
    February 17, 2016

    Dear Liora,

    I find it rather odd for WGAD to state that the actions of the Swedish prosecutor was “disproportionate” and ”unreasonable” in their “refusal” to resolve the issue earlier by means of video conferencing or other means. According to Judge Howard Riddle’s ruling following the extradition hearing on the 7-8 of February 2011 at the City of Westminster Magistrate’s Court, the Swedish prosecutor made several attempts to interview Julian Assange, through his lawyer, while he was in Sweden. A transcript from the interview with Assange’s Swedish lawyer revealed that he was aware that the case had been re-opened on the 1st of September after an appeal by the lawyer representing the two alleged victims. From the 21st of September to the 27th of September, the Swedish prosecutor was in contact with Assange’s lawyer to organise a date for Assange’s interrogation. Julian Assange’s failure to respond to that request during that time lead the Swedish prosecutor to issue a domestic detention order against Julian Assange. On the 27th of September, 2010, 9:11am, Assange’s lawyer was notified, as was the Australian embassy, that there was a detention order against him. That very same day, Julian Assange left Sweden. Granted that the information was not made available by Sweden to WGAD, but its relevancy was not readily apparent from the submission by Assange’s side.

    At the heart of Assange’s submission is the alleged fear of “refoulement” by the United States if extradited to Sweden that makes his voluntary detention in the Ecuadorian embassy involuntary. The obvious question is how real is Assange’s fear of “refoulement”? Bradley/Chelsea Manning was arrested in May 2010 which was one month before Assange travelled to Sweden and Manning was sentenced in August 2013 which is well over year after Assange walked into the Ecuadorian embassy (19 June 2012). Edward Snowden didn’t publish any material until May 2013 after he left his job in Hawaii and flew to Hong Kong. Between 27th of May 2010, when Bradley/Chelsea Manning was arrested, and immediately prior to the Supreme Court rejection Julian Assange took no steps or measures to protect himself from a potential extradition or “refoulement” to the U.S. It was not until after the Supreme Court rejected his final appeal that we are all suppose to believe that the threat suddenly had become so great and imminent that his only option was to seek asylum in the Ecuadorian embassy in London.

    Sincerely,
    Kim Olsson

    • AFB65
      February 24, 2016

      Weird conclusion Kim, when he was in UK he was not extradited. That’s a fact. After Supreme Court decision, there was an important change. But who are you to sit in the chair of the judge? UN accepted it, so if UK does not accept it, the free world does accept it, it is clear.

  17. AFB65
    February 18, 2016

    Why is it so difficult to understand UN decision?

    UN does say that the imprisonment of Mr. Assange was not correct. That was the beginning.

    It is so easy, states are not allowed to take someone’s freedom, unless …

    There was no unless.

    The inquiry could have taken place while Mr Assange was still in freedom.

    So, there was no reason at all, to put Mr. Asssange in jail or give Mr. Assange home arrest.

    It is so easy.

    UK and Sweden did violate human rights.

    It is not a discussion of laws at all, states are not allowed to take someone’s freedom, unless ….

    There was no unless.

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