Three members of U.N. panel said Assange was ‘arbitrarily detained.’ One didn’t. Here’s his dissent.

[struggle4progress]

Vladimir Tochilovsky

The adopted Opinion raises serious question as to the scope of the mandate of the Working Group.

It is assumed in the Opinion that Mr. Assange has been detained in the Embassy of Ecuador in London by the authorities of the United Kingdom. In particular, it is stated that his stay in the Embassy constitutes “a state of an arbitrary deprivation of liberty.”

In fact, Mr. Assange fled the bail in June 2012 and since then stays at the premises of the Embassy using them as a safe haven to evade arrest. Indeed, fugitives are often self-confined within the places where they evade arrest and detention. This could be some premises, as in Mr. Assange’s situation, or the territory of the State that does not recognise the arrest warrant. However, these territories and premises of self-confinement cannot be considered as places of detention for the purposes of the mandate of the Working Group.

In regard to the house arrest of Mr. Assange in 2011-2012, it was previously emphasised by the Working Group that where the person is allowed to leave the residence (as in Mr. Assange’s case), it is “a form of restriction of liberty rather than deprivation of liberty, measure which would then lie outside the Group’s competence” (E/CN.4/1998/44, para. 41(e)). Mr. Assange was allowed to leave the mansion where he was supposed to reside while litigating against extradition in the courts of the United Kingdom. As soon as his last application was dismissed by the Supreme Court in June 2012, Mr. Assange fled the bail.

The mandate of the Working Group is not without limits. By definition, the Working Group is not competent to consider situations that do not involve deprivation of liberty. For the same reason, issues related to the fugitives’ self-confinement, such as asylum and extradition, do not fall into the mandate of the Working Group (see, for instance, E/CN.4/1999/63, para. 67).

That is not to say that the complaints of Mr. Assange could not have been considered. There exist the appropriate UN human rights treaty bodies and the European Court of Human Rights that do have mandate to examine such complaints regardless whether they involve deprivation of liberty or not.

Incidentally, any further application of Mr. Assange may now be declared inadmissible in an appropriate UN body or ECtHR on the matters that have been considered by the Working Group. In this regard, one may refer to the ECtHR decision in Peraldi v. France (2096/05) and the reservation of Sweden to the First Optional Protocol to the ICCPR.

For these reasons, I dissent.

[Blue_Tires]

1. People are putting way too much into this legally nonbinding resolution

and naturally Assange and his acolytes are playing this to the hilt, which distorts things even further...Ironically, Assange has damned and disregarded UN decisions before when they didn't suit him, so his embrace of this is hypocritical at best...

For the last time -- There's only one way Assange gets out of his predicament, but he'd have to stop deluding himself and his followers first...

[zalinda]

2. How?

If he steps out of the embassy, he risks being disappeared.

Z

[Blue_Tires]

3. Yeah, keep telling yourself that

Greenwald goes anywhere in the U.S. he pleases without even getting hassled at customs, but we're going to pull out all the stops to "disappear" Assange? Sure... Manning's already rotting in prison, so case closed, as far as the U.S. is concerned...

Wikileaks is already living on past glory and borderline irrelevant, relying on increasingly questionable stunts for publicity (i.e., the Sony hack)... The minute this legal standoff ends is the minute Assange loses his remaining spotlight...

[struggle4progress]

4. Indicators of what constitutes arbitrary detention appear in the prohibitions of Article 9

of the International Convention on Civil and Political Rights, namely, that

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

Mr Assange is not presently under arrest nor is he presently in any official detention. He is subject to a European arrest warrant issued by Swedish prosecutors. Assange has long been aware of the Swedish allegations and has through his lawyers repeatedly challenged the arrest warrant in Swedish court, where he has repeatedly lost. The arrest warrant reached the UK in late 2010, and Assange was briefly detained by UK authorities before being released on bail until his arguments (against extradition to Sweden to face sexual allegations there) could be heard. His case wandered through various levels of the UK courts for about a year and a half, before Assange decided (after losing at every level) to abandon further European appeals, fleeing to the Ecuadorian embassy. This was found in UK court to violate his bail agreement, and those who had posted sureties to guarantee his appearance therefore suffered corresponding financial losses.

He has been in the Ecuadorian embassy in London now three and a half years. How this might be regarded as a detention by Sweden must remain a great mystery to me, since Swedish authorities have no power in the UK nor any power over the Ecuadorian embassy in London. Assange went there of his own volition and remains there of his own volition; and Swedish authorities neither put nor keep him there. Nor is Assange now detained by Her Majesty's government in the UK, for consonant with UK law and the country's treaty obligations to Sweden, the UK courts have determined that he will be properly extradited to Sweden, which has not occurred so far only because he is still a fugitive. as was certainly clear when his guarantors forfeited the sureties they posted for his bail. And, although the Ecuadorian embassy in London remains UK territory, current customs and treaties governing diplomatic relations quite strongly limit whatever control UK authorities exert there: Ecuador effectively controls the embassy. That Assange could be extradited to face prosecution in Sweden, upon leaving the embassy, reflects the outcome of UK court cases in which Assange participated willingly; and that he might now face a different arrest in the UK, on the additional charge of violating the Bail Act, reflects the fact that Assange chose to abrogate bail conditions to which he had earlier agreed in voluntary manner.

Prosecutions for sexual misconduct are common enough around the world; international arrest warrants are commonly employed against international suspects; and the possibility that one commits a crime by jumping bail is not some obscure juridical notion employed only against Assange.

[muriel_volestrangler]

5. He was in the UK for 2 years without any extradition request

and extraditing from the UK to the USA is notoriously easy.

https://en.wikipedia.org/wiki/UK%E2%80%93US_extradition_treaty_of_2003

When he decided to go from Sweden to the UK, he showed that he didn't have a fear of extradition to the USA at the time (and the USA hadn't tried to extradite him from Sweden, either). It's only since the rape case in Sweden started looking dodgy for him that he's claimed this fear of extradition to the USA.

And, of course, someone so well known can never be 'disappeared'. There would be huge publicity, and plenty of people in the USA wanting to take his side in any court case (and to demand that he would get a court case).

[zalinda]

6. See my post here

http://www.democraticunderground.com/?com=view_post&forum=1016&pid=143603

There was a lot more going on than we knew.

Try this link http://bigthink.com/focal-point/a-feminist-lawyer-on-the-case-against-wikileaks-julian-assange

Z

[struggle4progress]

7. The question "Is Assange guilty or innocent of the Swedish allegations?" is a matter

for the Swedish courts: the question before the UK courts was simply whether the UK should honor Sweden's extradition request

Nor does the question, of Assange's guilt or innocence of the Swedish allegations, fall within the mandate of the Working Group on Arbitrary Detention, which is to ensure that detained persons have access to legal process

[muriel_volestrangler]

8. Which all confirms what I said about extradition to the USA

ie that he had no worry of it until the warrant for extradition to Sweden for questioning about rape was issued. Indeed, he was even applying for residence in Sweden before then - not the action of someone who feared he could be extradited to the USA from there.

[zalinda]

9. He didn't fear it before the rape allegations. n/t

[struggle4progress]

10. How convenient!

[zalinda]

11. Did you read about the rape charges?

They were hinky at best. The charges were dropped when he left Sweden and then were filed again. This was not what most people think it was. These girls knew each other, and the holes in their stories were massive. Where the hell is innocent until proven guilty?

Z

[struggle4progress]

12. That is entirely irrelevant to the question of whether Assange is arbitrarily detained.

Stockholm District Court ordered his detention in November 2010, after he fled Sweden, and issued a corresponding European Arrest Warrant. Assange's lawyers promptly appealed to the Svea Court of Appeal, which upheld the warrant, and then to the Supreme Court of Sweden, which declined to invalidate. In December 2010, Scotland Yard issued notice that a proper EAW had been received. Assange surrendered and was remanded but was released on bail several days later. In February 2010, extradition hearings were held in the UK, with decision against Assange, who appealed to the High Court, losing in November. The Supreme Court in the UK held the case subsequently twice, ruling against Assange in May and June 2012. At that time, Assange, rather than continuing an appeal to European Court of Human Rights in Strasbourg, removed his electronic monitoring bracelet, which had been a condition of bail, and fled to the Ecuadorian embassy. In consequence, those who posted sureties for him, as condition of bail, forfeited heavily

Prosecutions for violations of Swedish law do not occur in UK courts but in Swedish courts. The EU community is bound by international treaties to support EAWs under ordinary conditions; and after a year and a half of litigation, Assange did not convince the UK courts that there was any good cause to set aside the EAW. He himself violated the conditions of bail to which he had earlier agreed, and at that time, he simultaneously abandoned further appeal of his case; since then, he has been in custody of neither the Swedish nor the UK governments but is a fugitive from judicial process

The question, whether there is a satisfactory case against Assange in Sweden, is not a matter to be decided by the Working Group on Arbitrary Detention, which has a rather narrower mandate

If the Swedish case against Assange is as obviously deficient as Assange and his lawyers claim, and as his supporters believe, then that should become evident during any prosecution in Sweden and ought to lead to his being cleared of charges. The fact that Assange, as well as his lawyers and supporters, do not wish to submit to a Swesish prosecution, strongly suggests that they are not as confident in their view of the facts as they loudly proclaim themselves to be. But such questions nevertheless remain irrelevant to the question of how Assange, currently a fugitive from judicial process after jumping bail, could possibly be regarded as being currently detained arbitrarily by either the Swedish or UK governments, since he is in the custody of neither