The Assange case: a human rights perspective

Julian Assange's future remains in doubt as he continues to reside in the Ecuadorian embassy in London and to seek asylum from Ecuador.

It is timely to look again at the final court decision that led to his decision to seek asylum in that way.

Mr. Assange, the founder of WikiLeaks, lost his final domestic appeal against the enforcement of a European Arrest Warrant ("EAW") in favour of Sweden by a majority of 5-2 in the Supreme Court.

The appeal centered on the interpretation of "judicial authority" in the 2002 European Council Framework Decision on the EAW and the use of the same phrase in the UK legislation passed to give effect to the Framework Decision, the Extradition Act 2003.

The majority ruled that "judicial authority", despite its association in English with courts and judges, was broad enough in both the Framework Decision and the Act to encompass Swedish public prosecutors.

The judgment unreasonably favours administrative convenience over the need to interpret legislation in accord with what happened in Parliament and in accord with human rights safeguards.

Mr Assange, under house arrest without charge since December 2010, is wanted in Sweden for questioning about allegations of sexual misconduct. Although the alleged conduct is described as rape, the definition under Swedish law appears to go beyond what has traditionally been the offence of rape in United Kingdom and Australian jurisdictions.

On 18 November 2010, a Swedish Public Prosecutor obtained a domestic detention order in absentia against Mr Assange from the Stockholm District Court. The domestic detention order appears to be an equivalent of a domestic arrest warrant, in this case for questioning.

The Prosecutor issued an EAW. A UK administrative authority certified the EAW pursuant to the provisions of the 2003 Act.

The appeal to the Supreme Court was on the one point involving the meaning of "judicial authority".

The leading judgment of the majority was written by Lord Phillips, President of the Court. The majority found that even prosecutors who were involved in the case were included in "judicial authority" as used in the Framework Decision and in the UK legislation.

The majority of five coalesced around reliance on post-Framework Decision practice to interpret what was unclear on the wording of the Framework Decision, itself. That is, the majority relied upon the practice of 11 Member States to register public prosecutors as competent authorities to issue EAWs.

The reasoning relied on the 1969 Vienna Convention on the Law of Treaties which allows "any subsequent practice … which establishes the agreement of the parties …" to be taken into account.

The majority held that the words in the 2003 Act necessarily reflected their meaning in the Framework Decision. This follows rules of interpretation that suggests that the Parliament generally does attempt to legislate in accord with its international treaty obligations.

However, the majority held that it was not permitted to have regard to Parliamentary speeches by which the Ministers in charge of the Bill gave assurances that EAWs would not be enforceable if they were issued by bodies unrecognisable as courts or impartial tribunals. And the majority did not give weight to amendments made during the passage through Parliament in accord with those assurances.

It is difficult to understand why strong weight would not be given to the legislative history and the Ministers' assurances when the Framework Decision appears so difficult to construe with clarity.

Lord Mance, one of the two minority judges, agreed that "judicial authority" in the Framework Decision was capable of encompassing public prosecutors.

Lord Mance and Lady Hale (the other minority judge) said that the Court's role was limited to construing "an Act of the UK Parliament".

They found the so-called state practice meant little when nobody had actually put their mind to the meaning of the words in dispute.

Equally, they said that, while one might expect Parliament to legislate in accord with international obligations, it was not an absolute rule.

Importantly, Lady Hale pointed out that the rule must give way to human rights considerations when a person's liberty is at stake.

In our view, the need for decisions to request the European version of extradition to be made by someone independent of the parties in the case is an obvious and crucial safeguard. The EAW system was designed to take out political and discretionary decision making in the country where the warrant is to be enforced. These discretionary elements provided important safeguards. In their absence, the involvement of a true judicial and impartial authority in the decision to issue the EAW would seem to be a minimum response. The human rights implications of being dragged off to another country at the behest of someone with a passionate and partial involvement in the case seem obvious.

In this respect, the approach of the minority seems much more in accord both with traditional common law and international human rights values.

Court decisions, like requests for asylum, are unpredictable and can go either way. While the decision has significantly impacted on the life of Mr. Assange, its capacity to cause injustice in the future is also of great concern.