Wikileaks and the arrest of Julian Assange

Updated | Wikileaks founder Julian Assange was arrested yesterday and refused bail after a hearing at Westminster Magistrates Court.

He was not arrested in relation to the whistle-blowing website Wikileaks, but rather on suspicion of having sexually assaulted two women in Sweden. His lawyers have said that “many believe” the arrest was politically motivated.

The mechanism for his arrest is of interest. He was arrested under a “European arrest warrant”, with a view to extraditing him to Sweden to face the charges. Carl Gardner explains the process in an excellent post on his Head of Legal Blog:

All this is happening under Part 1 of the Extradition Act 2003. Sweden having issued a European arrest warrant (here’s the Interpol “red notice”) it seems Assange attended a police station this morning, and was arrested presumably under section 3. The initial hearing today took place in accordance withsections 7 and 8, the district judge simply setting the date of the full extradition hearing (or at least its formal opening) under section 8(1)(a), and making a decision on bail or custody in the meantime.

European arrest warrants make it relatively easy for European states to extradite suspected criminals such as Assange. They have been fairly controversial (see this post) and are currently under review by the coalition government (see our post), alongside the also-controversial extradition arrangement with the United States. It would appear that the United States have not submitted their own extradition request, which may reflect the difficulty in finding a crime to accuse him of.

Gardner finds it unsurprising that bail wasn’t granted in this case, given the seriousness of the charges and the likelihood that he may have fled the jurisdiction. In relation to the Swedish charges, the New York Times reviews the law relating to sexual assault in Sweden, which is not much stricter on sexual assault than other European states.

The full extradition hearing has to be within 21 days. A judge will have to decide (again, thanks to Carl Gardner):

  • whether the offence he’s wanted for is an “extradition offence” (section 10read with section 64, I think in this case section 64(3) in particular); there seems to be no dispute about this;
  • whether extradition is “barred” under section 11, which it is by reason of “extraneous conditions” under section 11(1)(b) read with section 13 if extradition is really about punishing him for his political views, or if they might prejudice his trial, and
  • whether extradition would comply with human rights (section 21).

According to Afua Hirsch at The Guardian, Assange will argue, amongst other things, that he would be unfairly deprived of his liberty in Sweden and therefore should be protected under human rights law.

Human rights law is often (some say increasingly) invoked, although rarely successfully, in extradition proceedings. If a person can show that there is a real risk of his rights – such as to a fair trial or against inhuman and degrading treatment – being breached in the receiving state, then a UK court will not extradite him as that would amount to a UK public authority – the court – causing the breach, which is unlawful under section 6 of the Human Rights Act 1998.

For example, the High Court recently questioned whether the Russian criminal justice system was too corrupt to ensure a fair trial for a man faced with extradition (see my post). The court was asked to decide whether the lack of accountability of prosecutors in Russia would lead to a “flagrant denial of justice” if a man were extradited. The extradition request ultimately failed for other reasons, but the judge expressed significant concerns in relation to the Russian justice system.

But Sweden is not Russia. Assange may argue that since the charges are politically motivated, he will not receive a fair trial. But without solid proof of such serious allegations, he will not succeed. European Arrest Warrants are designed to make extradition between states simple and quick, and it will be difficult even in such a high-profile case to prevent this happening.

He may also invoke the right to freedom of expression. Article 10 of the European Convention on Human Rights provides that everyone has a right to freedom of expression, but a state can restrict that right, amongst other reasons, in the interests of national security and the prevention of crime. If Assange was facing extradition to the United States, which may follow soon, this argument would be at front and centre.

But as things stand, unless he can show that the sexual assault allegations are politically motivated, which seems unlikely, it is hard to see how freedom of expression will play much of a part. The Wikileaks site is still running despite his arrest, and freedom of expression rights can legitimately be breached to prevent crime.

Update, 8 December 2010 - Afua Hirsch, writing on Guardian.co.uk, asks what is likely to happen next for Assange:

In short, for every politician itching to put Assange on trial, there is a legal obstacle to be overcome, which makes one thing and one thing only certain – for the question of Assange’s future under the law, there is no end in sight.

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9 thoughts on “Wikileaks and the arrest of Julian Assange

  1. A concern of mine; what assurances are there that if the extradition is carried out and assange ends up in sweden then he is safe from a US extradition which could be politically motivated?

  2. So for us in the legal peanut gallery, the sexual aspect of the wikileaks sage brings up several questions. Assange has been now formally charged (as I understand) with four counts of sexual misconduct, based on allegations, but although he and his lawyer have repeatedly asked to know what the allegations are, they were denied this information. Is this how things normally work?

    Mark Stevens: No, I haven’t spoken with him or anything else. It’s very difficult obviously to prepare the case but at the moment I don’t have details of the evidence against him yet and this is something that the prosecutor – perhaps one would even say ‘persecutor’ – from Sweden has been playing hide-and-seek with for some months now. Julian Assange sought information in August, asked about the nature of allegations against him and has this far being denied access to that information. I think he believes he could rebuff it.

    John Robles: Neither he nor you even have the charges or details on the case against him in Sweden?

    Mark Stevens: Well, we have the details of the charges now and that was read in court yesterday. But the allegations were made back in the middle of August and for the very first time yesterday we heard what they were in court. But Julian has a right to have it communicated to him in a language so that he understands not only the charges but the allegations because he hasn’t actually been charged.

    John Robles: Is that a normal procedure just to give you one day to prepare? I mean that sounds really unreasonable to put it mildly.

    Mark Stevens: Well, I think it is unfortunate. It’s fair to say that.

    John Robles: How can you properly prepare a case in one day? I don’t think that’s possible.

    =============

    Mark Stevens: That’s right. The Chief Prosecutor of Sweden’s said there was not a shred of evidence against him and that he didn’t need to have the case pursued and she gave him permission to leave the country. He’d stayed there for 40 days trying to resolve this and they refused to meet him and give him the evidence. Then, of course, a politician got involved and he took these women out of Stockholm to Guttenberg and on the same facts started another prosecution with another prosecutor. I know that in most countries that would be an abuse of process. It appears though that in Sweden this is what the Prosecutor is doing.

    =============

    John Robles: There’s one thing I want to ask you: what exactly is going to happen on the 14th? Is that going to be like a pretrial hearing or is it the actual extradition hearing or what?

    Mark Stevens: No, it’ll be the hearing when the issues are identified and then once they are identified we’ll have an idea of how long the hearing will take place and the date will be scheduled, probably the end of January or the beginning of February.

    =====================================

    My question: If the charges were read yesterday in court, why does his lawyer say he hasn’t yet been charged? I’m at a loss here to understand what he meant.

  3. Against what everybody think, Julian Assange is very lucky to have this case in Sweden over him. It protects him from being extraded to the US by UK and/or Sweden, before this case is closed or put to court.

    And it will be juridically difficult to extrade him from Sweden, because political or military reasons are not enough.

    This will take time, folks. By then people in the US will come to sence (believe it or not) and all alligations from them will be much more modest or even dropped.

    There is no set-up. And if there is, it might actually be one from Assange himself?

  4. Extremely fascinating case. Having worked in this area I’m happy to provide a few views.

    1. First hearing was routine. Bail 101, if you have no fixed place of abode how on earth could any judge presume you will return for the full hearing.

    2. Second hearing will be routine too. There is no doubt that this is an ‘extradition offence’, non-extradition lawyers will look at ‘extraneous conditions’ and think there is a gap – there isn’t – he has been accused of an offence (one, admittedly which he has been arrested before in the Cat 1 receiving country and which he is on ‘conditional release’ for). The bar for the “political opinions” part of the test is also extraordinarily high – “I believe in free information” – will not fulfil the test. It is also indisputable that his extradition to Sweden would comply with Human Rights (sly aside: otherwise another couple of prisoners recently removed under the proceedure may have something to say about that).

    3. Onward extradition: regrettably extradition has garnered a bad reputation because of all the mis-information spread willy nilly as a consequence of McKinnon. Extradition to the US for any capital offence (Espionage Act included) is prohibited by Soering (i’m sure some US lawyer has been informing senators which is why they have stopped bleating about it). All EU countries would be prohibited from extraditing Assange while he is being investigated for a separate offence. So Whatever happens, the US will have to join the queue behind Sweden. The US are in a bit of a bind really, as they have to find an offence which he is guilty of which does not apply to any of his media partners (including importantly the US based New York Times). More importantly, they have to do so without bringing the first amendment into play – a court judgment confirming Wikileaks status as a member of the media would be the worse possible outcome. It seems, at least to me, that they are pursuing “soft” measures to handle Wikileaks with the hope that by strangling its finance and taking it offline it will be able to reduce its power rather than destroy it completely.

  5. Do any of you remember President George W Bush and his lies concerning Iraq, and I wonder how many Americans are saying where was Wikileaks when we needed them?

    All Anglo-American Politicians know the number of American and non-American lives were put in danger because of President George W Bush’s lies on Iraq, and who were denied their right to Life, Liberty, and the pursuit of Happiness, but the Dictators of America have hypocritically and conveniently remained silent on that.

    Can any of us think that President George W Bush will be tried for treason and executed, yet these American Dictators are treating like Private First Class Bradley Manning and the founder of Wikileaks like criminals.

  6. We all remember President George W Bush and his lies concerning Iraq; and I wonder how many Americans are asking where Wikileaks was when we needed them?

    All Anglo-American Politicians know the number of American and non-American lives were lost because of President George W Bush’s lies on Iraq.

    These American Citizens were denied their right to Life, Liberty, and the pursuit of Happiness, but the Dictators of America have hypocritically and conveniently remained silent on that.

    The American Constitution doe not allow the Dictators of America to seek to rule the world, but do their best to ensure the Right of American Citizens, including the thousands of American Soldiers who were killed, and the many others who were serious injured to Life, Liberty, and the Pursuit Of Happiness.

    Can any of us think that President George W Bush will be tried for treason and executed, yet these American Dictators are treating Private First Class Bradley Manning and the founder of Wikileaks like criminals?

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