The round-up: Gove’s Gloss and the Assange Saga

8 February 2016 by



In the News

The UN working group on arbitrary detention have concluded that the Wikileaks founder Julian Assange has been “arbitrarily detained” by Britain and Sweden in the Ecuadorian Embassy for the last three and a half years. In particular, the working group considered that Mr Assange had not been guaranteed a fair trial, in violation of Articles 9 and 10 of the Universal Declaration on Human Rights, and Articles 9, 10 and 14 of the International Covenant on Civil and Political Rights. They have called on Britain and Sweden to end Assange’s deprivation of liberty, respect his physical integrity and freedom of movement, and afford him the right to compensation – which all seems rather steep for someone who has in effect used the Embassy “as a safe haven to avoid arrest” – in the words of the dissenting member of the working group, Ukrainian lawyer Vladimir Tochilovsky.

Julian Assange sought refuge in the Ecuadorian Embassy in 2012 after the UK Supreme Court rejected his appeal against a European Arrest Warrant issued by the Swedish prosecution authority for rape and sexual assault allegations. He has remained there since, now claiming the UN opinion marks a “sweet victory” – but which the UK and Sweden have flatly rejected, on the basis that only one detaining Assange there is Assange himself.

Joshua Rozenberg answers the question on everyone’s minds – how did the UN get it so wrong? The definition the panel gave for Assange’s “arbitrary detention” was that “non observance … of the international norms relating to the right to a fair trial … is of such gravity as to give the detention an arbitrary character”. Of course, such a definition of arbitrary detention presumes detention in the first place – which in this case, was self-confinement in the Embassy.

Tochilovsky, the lone dissent on the panel, was the only one to make the point that “fugitives are often self-confined within the places they evade arrest and detention” and “self-confinement cannot be considered places of detention for the purposes of the mandate of the working group”.

Nevertheless, the majority of working group noted first that Assange had been segregated from other prisoners for ten days whilst remanded in custody in Wandsworth Prison in 2010, saying that arbitrariness is “inherent in this form of deprivation of liberty” (palpably absurd, according to Rozenburg). They then considered the 550-day house arrest (when Assange was on conditional bail and subject to a curfew at night) with its “harsh restrictions” to be a continuation of this detention . His following stay in the Ecuadorian embassy, should therefore be considered as a “prolongation of the already continued deprivation of liberty”.

Legal Commentator Carl Gardner describes the reasoning of the working group as “thin, to say the least”, concluding after his own careful analysis that Foreign Secretary Philip Hammond was right in his assertion that the opinion is “ridiculous“.

Other News

  • Justice Secretary Michael Gove appeared before the EU sub-committee on Human Rights last week to give evidence on his plans for the British Bill of Rights – though it can’t be said that the plans were made particularly evident. See here for a video of the session. Mr Gove suggested the government “envisage that all the rights in the Convention would be contained in the British Bill of Rights but there may be a difference of emphasis for some of them” – on freedom of speech, with an increased protection from human rights claims for British soldiers abroad, though no detail was given on this. See coverage on Rightsinfo here. Whilst Liberty warns us not to fall for “Gove’s gloss” – maintaining that the threat to the Human Rights Act is as real as ever – political commentator Ian Dunt writes that Gove has basically admitted the Tory attack on human rights is dead, by conceding that they no longer intend to leave the ECHR.
  • According to new statistics from UNICEF, the number of victims of Female Genital Mutilation is 70 million higher than previously thought, due to new data collected from Indonesia. The report focused on 30 countries and revealed that half of the total 200 million victims live in just three countries – Indonesia, Egypt and Ethiopia –whilst 98% of women and girls (aged 15-49) in Somalia have had their genitals cut. In England, 2,421 instances of FGM were reported from April to September last year, but there have not yet been any successful prosecutions.
  • Cuts to prison funding are putting vulnerable prisoners at risk, the Prison Officers Association has said. The warning that prisons are ill-equipped to provide for those with mental health problems comes as Sarah Reed was found dead in her cell at Holloway Prison last month, where she had been transferred on remand from a secure mental health unit having been charged with inflicting grievous bodily harm with intent. Sarah had suffered from severe mental illness since the sudden death of her child in 2003 – and four years ago had been thrown to the ground and beaten around the head by police officer PC James Kiddie (later found guilty of assault) as he arrested her on suspicion of shoplifting. The director of Inquest, the deaths in custody charity working with Reed’s family, described Sarah’s death as a “damning indictment of a criminal justice system that imprisons an extremely vulnerable black woman with mental health problems and fails to keep her safe”. This coincides with a statement made last week by the outgoing Chief Inspector of Prisons Nick Hardwicke that the prison system is declining in safety and conditions.

In the Courts

  • Amadou v Greece – conditions in two detention centres in Greece were a violation of Article 3 (degrading treatment), as were the living conditions of the applicant upon his release from detention. Khan Amadou, a Gambian national, had been detained in Greece after he had he entered the country illegally in July 2010, and was held first at Fylakio and then Aspropyrgos detention centres. Mr Amadou lodged an asylum application (which was ultimately rejected) and was released in November, upon which he declared he was homeless and requested that the Ministry of Social Solidarity provide him with material or financial assistance. Mr Amadou successfully relied on Article 3 to complain about the conditions in the detention centres, and that he had been left in a complete state of destitution following his release.
  • Iasir v Belgium – There was no violation of Article 6 § 1 (right to a fair trial or Article 6 § 2 (presumption of innocence) in applying murder as an aggravating circumstance in convicting a man for robbery. Mr Iasir had been convicted of robbery aggravated by the murder of a police officer killed at the scene by an accomplice. The Court found that the trial court had properly examined Mr Iasir’s conduct and role during and after the acts which had led to the death of the police officer and properly taken the view that since Mr Iasir had envisaged and accepted the fact that third parties might lose their lives, murder was therefore an aggravating circumstance to be applied in convicting him.

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  1. Without further delay the UN Working Group must take proposed action.

    Those who reveal Truth, particularly to make the world a better place, for no personal greed, must be substantially rewarded.

    Terrible injustice, unforgivable mental torture for 3.5 years is an unpardonable crime against an innocent individual who must now broadcast his findings without fear.

    Born FREE – Speak the TRUTH.

    Governments must ‘RE -form’ in the name of Peace!!!

  2. Miroslav Baros says:

    The essence of the case is the application of the Refugee Convention 1951 and the duty of non-refoulement, not any other form of asylum, like the so-called “diplomatic asylum”. Consequently, the case, to me may be summarily stated as follows:
    1. Failure of Swedish prosecutor to act diligently as the Swedish Appeal Court ruled in October 2014 (the prosecutor did not want to question the individual in the Embassy? Why wasn’t the prosecutor guided by the fact that “the alleged rape of a woman is one of the most serious violations and abuses of human rights”? Was there a more important consideration in the prosecutor’s mind than protecting this victim’s rights? This was recognised by the Swedish court as stated above”…investigation into Assange had come to a halt and prosecutors’ failure to examine alternative avenues of investigation “is not in line with their obligation” – so, it is the Swedish court criticising their own prosecution rather than this individual’s supporters’ recourse to creativity as stated by a participant in an earlier post.
    2. Mr Assange has never been charged with any offence! Why is this fundamental point so often ignored?
    3. Mr Assange has not fled Sweden but left it when his work permit expired.
    4. Mr Assange always said that he would avail himself to any procedure by the Swedish authorities if guarantees would be issued that the whole episode was not about an espionage case and extradition to the US.
    5. All the above resulted in a deprivation of liberty as recognised and ruled by the WGAD.

  3. David says:

    No one should be surprised that there is no access to justice and that the media / legal experts just obfuscate in this instance. How can it possibly be claimed that Julian Assange had a fair hearing in the Supreme Court when the Supreme Court ignored the fact that the Government indicated that it was not its intention for the EUW to use the French definition of Legal Authority that included the Swedish Prosecutor instigating the EUW.
    The UK Government should let Julian Assange go free and emable the USA to go for an Extradition Warrant if that is their intention.
    To describe a complaint about the denial of access to justice as ridiculous is remarkable to say the very least.

  4. james gerard byrne says:

    Whatever about the issue of “arbitrary detention” I am surprised that neither the blog or Joshua Rosenberg commented on this fact cited in the Committee’s report at para 69. “With regard to the legality of the EAW, the source stressed that 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.” Surely this is relevant ?
    Also no justification has been given by the Govt of Sweden as to why Assange must be present “in person” in Sweden. It excuses its silence by referring to the necessity not to interfere with the Public Prosecutor’s independence.
    As night follows day the US will seek his extradition if he ends up in Sweden.

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