Julian Assange speaking at the balcony of the Ecuador Embassy in London, 19th August 2012. Photo: wl dreamer via Wikimedia (CC BY-SA).
The deprivation of liberty of Mr. Assange is arbitrary and in contravention of his human rights
Human Rights Council Working Group on Arbitrary Detention
5th February 2016
The human rights campaigner Julian Assange has suffered arbitrary detention by the governments of Sweden and the UK, the HRC's Working Group on Arbitrary Detention ruled today. Here we present the key elements of the Ruling so readers can form their own opinion on the issue free of the universal condemnations of Assange and the Ruling evident in mainstream media.
We request the Governments of Sweden and the UK to ensure the safety and physical integrity of Mr. Assange, to facilitate the exercise of his right to freedom of movement in an expedient manner, and to ensure the full enjoyment of his rights.
84. The question that was posed to the Working Group is whether the current situation of Mr. Assange corresponds to any of the five categories of arbitrary detention applied by the Working Group in the consideration of the cases brought to its attention.
85. At the outset, the Working Group notes with concern that Mr. Assange has been subjected to different forms of deprivation of liberty ever since 7 December 2010 to this date as a result of both the actions and the inactions of the State of Sweden and the United Kingdom of Great Britain and Northern Ireland.
86. Firstly, Mr. Assange was held in isolation in the Wandsworth prison in London for 10 days, from 7 December to 16 December 2010 and this was not challenged by any of the two Respondent States.
In this regard, the Working Group expresses its concern that he was detained in isolation at the very beginning of the episode that lasted longer than 5 years. The arbitrariness is inherent in this form of deprivation of liberty, if the individual is left outside the cloak of legal protection, including the access to legal assistance.
Such a practice of law in general corresponds to the violations of both rules proscribing arbitrary detention and ensuring the right to a fair trial, as guaranteed by articles 9 and 10 of the UDHR and articles 7, 9(1), 9(3), 9(4), 10 and 14 of the ICCPR.
87. That initial deprivation of liberty then continued in the form of house arrest for some 550 days. This again was not contested by any of the two States.
During this prolonged period of house arrest, Mr. Assange had been subjected to various forms of harsh restrictions, including monitoring using an electric tag, an obligation to report to the police every day and a bar on being outside of his place of residence at night.
In this regard, the Working Group has no choice but to query what has prohibited the unfolding of judicial management of any kind in a reasonable manner from occurring for such extended period of time.
88. It is during that period that he has sought refuge at the Embassy of the Republic of Ecuador in London. Despite the fact that the Republic of Ecuador has granted him asylum in August 2012, his newly acquired status has not been recognized by neither Sweden nor the UK.
Mr. Assange has been subjected to extensive surveillance by the British police during his stay at the Ecuadorian Embassy to this date.
89. In view of the foregoing, the Working Group considers that, in violation of articles 9 and 10 of the Universal Declaration of Human Rights and articles 9 and 14 of the International Covenant on Civil and Political Rights (ICCPR), Mr. Assange has not been guaranteed the international norms of due process and the guarantees to a fair trial during these three different moments: the detention in isolation in Wandsworth Prison, the 550 days under house arrest, and the continuation of the deprivation of liberty in the Embassy of the Republic of Ecuador in London, United Kingdom.
90. The Working Group also views that Mr. Assange's stay at the Embassy of the Republic of Ecuador in London to this date should be considered as a prolongation of the already continued deprivation of liberty that had been conducted in breach of the principles of reasonableness, necessity and proportionality.
91. The Working Group, in its Deliberation No. 9, had already confirmed its position on the definition of arbitrary detention. What matters in the expression ‘arbitrary detention' is essentially the word 'arbitrary', i.e., the elimination, in all its forms, of arbitrariness, whatever the phase of deprivation of liberty concerned (para. 56).
Placing individuals in temporary custody in stations, ports and airports or any other facilities where they remain under constant surveillance may not only amount to restrictions to personal freedom of movement, but also constitute a de facto deprivation of liberty (para. 59).
The notion of 'arbitrary' stricto sensu includes both the requirement that a particular form of deprivation of liberty is taken in accordance with the applicable law and procedure and that it is proportional to the aim sought, reasonable and necessary (para. 61).
92. The Human Rights Committee, in its General Comment No. 35 on Article 9 also stated that "An arrest or detention may be authorized by domestic law and nonetheless be arbitrary. The notion of 'arbitrariness' is not to be equated with 'against law', but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity, and proportionality."
93. 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.
94. In its reply, the Swedish Government indicated that according to Swedish law, a suspect is entitled to examine all the investigation material upon which the allegation is based. The Working Group notes in this regard that Mr. Assange has not been granted access to any material of such which is in violation of article 14 of ICCPR.
95. At this point, it is noteworthy that the Working Group, while examining the essential safeguards for the prevention of torture, stressed that prompt and regular access should be given to independent medical personnel and lawyers and, under appropriate supervision when the legitimate purpose of the detention so requires, to family members (para. 58, the Deliberation No. 9).
The right to personal security in article 9, paragraph 1 of the ICCPR, is relevant to the treatment of both detained and non-detained persons. The appropriateness of the conditions prevailing in detention to the purpose of detention is sometimes a factor in determining whether detention is arbitrary within the meaning of article 9 of the ICCPR. Certain conditions of detention (such as access to counsel and family) may result in procedural violations of paragraphs 3 and 4 of article 9 (para. 59, the Deliberation 9).
96. With regard to the application of the principle of proportionality, it is also worth mentioning that Lord Reed of the UK Supreme Court (Bank Mellat v Her Majesty's Treasury  UKSC 39, per Lord Reeds, para. 74) set out that it is necessary to determine:
(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected rights;
(2) whether the measure is rationally connected to the objective;
(3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective;
(4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it apples against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.
97. The Working Group also views that there has been a substantial failure to exercise due diligence on the part of the concerned States with regard to the performance of the criminal administration, given the following factual elements:
(1) in the case of Mr. Assange, after more than five years' of time lapse, he is still left even before the stage of preliminary investigation with no predictability as to whether and when a formal process of any judicial dealing would commence;
(2) despite that it is left to the initial choice of the Swedish prosecution as to what mode of investigation would best suit the purpose of criminal justice, the exercise and implementation of the investigation method should be conducted in compliance with the rule of proportionality, including undertaking to explore alternative ways of administering justice;
(3) unlike other suspects in general whose whereabouts are either unknown or unidentifiable and whose spirit of cooperation is non-existent, Mr. Assange, while staying under constant and highly intrusive surveillance, has continued to express his willingness to participate in the criminal investigation;
(4) as a consequence, his situation now has become both excessive and unnecessary. From a time perspective, it is worse than if he had appeared in Sweden for questioning and possible legal proceeding when first summoned to do so;
(5) 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;
(6) it defeats the purpose and efficiency of justice and the interest of the concerned victims to put this matter of investigation to a state of indefinite procrastination .
98. The Working Group is convinced once again that, among others, the current situation of Mr. Assange staying within the confines of the Embassy of the Republic of Ecuador in London, United Kingdom, has become a state of an arbitrary deprivation of liberty. The factual elements and the totality of the circumstances that have led to this conclusion include the followings:
(1) Mr. Assange has been denied the opportunity to provide a statement, which is a fundamental aspect of the audi alteram partem principle, the access to exculpatory evidence, and thus the opportunity to defend himself against the allegations;
(2) the duration of such detention is ipso facto incompatible with the presumption of innocence. Mr. Assange has been denied the right to contest the continued necessity and proportionality of the arrest warrant in light of the length of this detention, i.e. his confinement in the Ecuadorian Embassy;
(3) the indefinite nature of this detention, and the absence of an effective form of judicial review or remedy concerning the prolonged confinement and the highly intrusive surveillance, to which Mr. Assange has been subjected;
(4) the Embassy of the Republic of Ecuador in London is not and far less than a house or detention centre equipped for prolonged pre-trial detention and lacks appropriate and necessary medical equipment or facilities. It is valid to assume, after 5 years of deprivation of liberty, Mr. Assange's health could have been deteriorated to a level that anything more than a superficial illness would put his health at a serious risk and he was denied his access to a medical institution for a proper diagnosis, including taking a MRI test;
(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).
The deprivation of liberty of Mr. Assange is arbitrary and in contravention of Articles 9 and 10 of the Universal Declaration of Human Rights
99. In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Mr. Assange is arbitrary and in contravention of articles 9 and 10 of the Universal Declaration of Human Rights and articles 7, 9(1), 9(3), 9(4), 10 and 14 of the International Covenant on Civil and Political Rights. It falls within category III of the categories applicable to the consideration of the cases submitted to the Working Group.
100. Consequent upon the opinion rendered, the Working Group requests the Government of Sweden and the Government of the United Kingdom of Great Britain and Northern Ireland to assess the situation of Mr. Assange, to ensure his safety and physical integrity, to facilitate the exercise of his right to freedom of movement in an expedient manner, and to ensure the full enjoyment of his rights guaranteed by the international norms on detention.
101. The Working Group considers that, taking into account all the circumstances of the case, the adequate remedy would be to ensure the right of free movement of Mr. Assange and accord him an enforceable right to compensation, in accordance with article 9(5) of the International Covenant on Civil and Political Rights.
The full ruling: 'Opinion No. 54/2015 concerning Julian Assange (Sweden and the United Kingdom of Great Britain and Northern Ireland' (DOCX file). Including the dissenting opinion of Mr Tochilovsky.
Members of the Human Rights Council Working Group on Arbitrary Detention: Mr. Seong-Phil Hong (Republic of Korea) is the Chairman-Rapporteur of the Working Group on Arbitrary Detention. Other members of the Working Group are Ms. Leigh Toomey (Australia); Mr. José Antonio Guevara Bermúdez (Mexico); Mr. Roland Adjovi Sètondji (Benin) and Mr. Vladimir Tochilovsky (Ukraine).
The UN Working Groups are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council's independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures' experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.
- The Universal Declaration on Human Rights.
- The International Covenant on Civil and Political Rights.
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