Sweden vs. Assange

Problems with JA’s EAW

Julian Assange’s EAW has a number of problems which are being challenged in UK courts on narrow, technical grounds and substantive grounds - namely that he has not been charged for any offence. Beyond the irregularities of Julian Assange’s EAW, this high profile case has brought attention to the flaws and abuses of the EAW system itself.

The EAW has led to more challenges before European Courts than any other EU law. On average, about 1000 EAWs are issued in the EU every month, the overwhelming majority for minor crimes. Between 2005 and 2009 54,689 EAWs were issued in the EU.

Problems with Julian Assange’s EAW

Julian Assange’s EAW has been challenged on three grounds: Firstly, technical grounds (such as the wording in the EAW, who issued it, and for what purpose); secondly, on grounds that the Prosecution was acting in abuse of process; and thirdly, on the grounds that the EAW conflicts with UK and European Human Rights legislation. While in the February Hearing, Julian Assange’s legal team focussed on all three aspects, in the July Appeal the new legal team narrowed the challenge to the EAW to three points relating to the first of these grounds. For the legal arguments, visit February Hearing and July Appeal.

In general, the problems with Julian Assange’s EAW come down to:

 No Charge

 Facts do not meet the alleged conduct specified in Sexual Offences.

 The Allegations of Sexual Offences, even if true, amount to conduct that would be legal in the UK.

 Timing of EAW and INTERPOL Red Notice

 The EAW is based on an Investigation that has been carried out improperly.

 The EAW has been issued in abuse of process. The Prosecution issued the EAW for questioning, not prosecution. The Prosecution has not provided Assange with evidence in English. The Prosecution fails to disclose evidence that demonstrates abuse of process. The Prosecution has denied Julian Assange his right to confidentiality and increased the risk of facing an unfair trial given that the Swedish media has already labeled him as a ’double rapist’.

For a summary of the irregularities of Julian Assange’s EAW, go to the Controversies tab, and read this summary, published in the Swedish publication DSM (in English).

EAW Conflicts with UK and European Human Rights Law

UK Parliament: EAW violates UK and European Human Rights legislation

June 2011: the House of Lords/House of Commons Joint Committee on Human Rights released its evaluation of UK extradition policy. It looked specifically at the EAW system. It urged the government to reform the EU Framework Decision. While renegotiation at the EU-level is more complex than amending UK legislation, the government has stated that "if the level of dissatisfaction with this piece of legislation is very great indeed, it would be right to try to do something about it." The June 2011 report calls for changes in the Framework decision, which would require renegotiation at the EU level. Highlights from the report that are relevant to the consideration of the Julian Assange EAW:

Abuse of process - Use of EAW for the purposes of an investigation

The Committee states (paragraph 168):

an EAW should not be used for the purposes of investigation... a Member State ’cannot just have a fishing expedition’.

 As it does appear that requests are being made merely for the purposes of investigation, we urge the Government to ensure that other Member States do not use the European Arrest Warrant for purposes of investigation, if necessary by amendment to the Framework Decision.

 We recommend that, where there are doubts as to the stage of proceedings reached in the requesting state, the facility for further information provided by the Framework Decision and the Extradition Act 2003 should be used. The requesting state should be asked to provide information on the indictment process under their national law, the stage of proceedings reached, the date set for the first hearing and an assurance that the individual will not be interrogated on arrival.

Problems with ’mutual recognition’ - double criminality

The EAW Framework Decision removes the double criminality requirement for 32 serious offences (in article 2.2), including rape, murder, drugs trafficking and terrorism. The Parliamentary committee stated:

 "The exclusion of the 32 offences from the double criminality requirement raises some difficult questions. The Government and the Extradition Review may wish to review the list of 32 offences for which double criminality is not considered, with a view to whether certain conduct should be excluded from the definitions of these offences" and suggests that the issue be renegotiated at the EU level (paragraph 165).

 One organisation which informed the committee, the Freedom Association, argued that the EAW’s abolishment of the double criminality requirement had "created a situation where laws voted in by elected officials in the UK Parliament have become null and void, due to the fact that UK citizens can be extradited for something that is not a crime in the UK." It concluded that "the European Arrest Warrant either needs to change so that double criminality requirements and the requirement for prima facie evidence are re-introduced or that the UK needs to remove itself from the European Arrest Warrant system." (paragraph 162).

 The organisations Liberty and JUSTICE raised concerns in relation to the definition of the offences - Liberty described these as "extremely broad to the point of being meaningless." Belgium has addressed the problem of the definition in offences that do not require double criminality by introducing legislation which excluded abortion and euthanasia from the category of "murder and grievous bodily harm". This allowed Belgium to not be under an obligation to extradite a person for the act of abortion under the definition of the offence of murder. This measure was criticised by the European Commission, because it went against the principle of mutual trust.

Problems with ’mutual recognition’ - proportionality

The Parliamentary committee stated:

 "We note the increasing number of European Arrest Warrant requests received by the UK. We have serious concerns about the disproportionate impact of extradition where it is requested for a relatively minor offence."

 The UK Government should work with the European Commission and "other Member States to implement a proportionality principle in the Framework Decision, both for operational reasons and to ensure that the human rights implications of extradition are not disproportionate to the alleged crime."

 "We are not convinced that informal guidelines, bilateral discussions with the authorities of other Member States or a public interest test operated by the authorities in the requested country would be operationally practical or successful in the long-term." (paragraphs 158 and 159).

Human Rights guarantees

 Fair Trials International’s submission to the Committee: the human rights test of the EAW made it "almost impossible" to challenge successfully extradition on Article 6 grounds: "The mere theoretical availability of a legal remedy in the issuing state should not absolve the executing state of the duty to conduct a proper legal review of the risk of infringement raised by the requested extradition and to provide the protection necessary to safeguard those rights, including where necessary by refusing to extradite." (FTI, paragraph 53).

 "The defendant should have a realistic opportunity to rebut the presumption that their human rights will be respected if extradited to a country which is a signatory to the ECHR or with which the UK has good relations" (paragraph 71).

 "The effectiveness of human rights protection would be improved if judges in extradition cases took a more active role in the extradition process, through the implementation of safeguards and the use of the human rights bar to ensure that the role of a judge in an extradition case is more than only ’rubber stamping’ extradition requests" (paragraph 78).

European Commission: EAW is regularly used disproportionately

April 2011: the European Commission report (COM (2011) 175) on the operation of the European Arrest Warrant made a number of observations and recommendations:

 There "must be adoption of the measures in the [EU] roadmap on procedural rights [...] to ensure that fundamental rights and freedoms are protected."

 "confidence in the application of the EAW has been undermined by the systematic issue of EAWs for the surrender of persons sought in respect of often very minor offences."

 Recourse to the European Court of Human Rights is not sufficient given that it is only a remedy after the breach has occurred. This is not an effective means of safeguarding individuals rights nor of ensuring that signatories comply with the Convention’s standards.

 "Before issuing an arrest warrant, Member State judicial authorities should consider the seriousness of the offence, length of sentence and the costs and benefits of executing an arrest warrant. The principle of proportionality needs to be carefully respected when implementing the warrant."

 Member States must ensure that "judicial practitioners, such as prosecutors" do not abuse the EAW system to issue arrest warrant for minor offences, including in those countries where prosecution is mandatory.

Council of Europe - Human Rights Commissioner

March 2011: Thomas Hammarberg, Council of Europe Commissioner for Human rights, described the overuse of EAWs as a threat to human rights:

There has been "repeated criticism of the manner in which the EAW has functioned in a number of concrete cases. This criticism must be taken seriously. Human rights organisations have expressed concerns about the imprisonment of innocent persons, disproportionate arrests, violations of procedural rights and the impossibility in some countries for an innocent person to appeal against a decision to be surrendered. The problems appear to have worsened with the increase of the number of EAWs... The EAW has been used in cases for which it was not intended, sometimes with harsh consequences on the lives of the persons concerned. It is thus high time to reform a system that affects thousands of persons every year."

Traditional safeguards in extradition agreements

Customary international law imposes no obligation on states to extradite. A number of important procedural safeguards and rules to protect individuals from extradition in unfair circumstances has developed in international law over time. These safeguards include:

 The requirement of dual criminality.
 The presence of prima facie evidence
 The possibility of a fair trial
 The protection of the individual against possible persecution at the hands of the requesting state.

Even before the UK Extradition Act was adopted, the UK Parliament European Scrutiny Committee (HC Paper 152) raised the same concerns that the committee raised in 2011:

 The absence of any explicit reference to the European Convention on Human Rights.
 The abandonment of dual criminality.
 The lack of definition of the offences for which this safeguard is being abandoned (Article 2.2 offences, which include rape).

The EAW strips courts of their powers and individuals of their rights

The Framework Decision created a bureaucratic channel for EU courts to fast-track the extradition process. But it severely limited the individual’s right to challenge the EAW order.

None of the traditional conditions for allowing extradition are present in the EAW system. The safeguards that existed in each of the EU countries were abolished and replaced by this new fast-track system. Underlying this overhaul was the unfounded assumption that since every EU member-state is subject to the European Convention on Human Rights, such protections are not required.

The existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment. - MSS v Belgium and Greece.

The fact that the EAW stripped the courts of their powers and individuals of their protections led the German Constitutional Court to reject the equivalent of the 2003 Extradition Act on the grounds that the court was being asked to consent to an extradition blind-folded, when the court’s duty to individuals was to ensure their fundamental rights were respected. The latter fundamental obligation took precedence, and the Constitutional Court decided that it could not execute the EAWs based on a system of trust.

How could Julian Assange challenge extradition under the traditional safeguards?

Julian Assange can only challenge the EAW on narrow technical grounds. Challenging the EAW on fundamental problems - proportionality, the real risk of an unfair trial, abuse of process by the police investigators and the prosecutor - is very difficult, even when these are flagrant. (See FTI’s report on Gary Mann’s extradition to an ’unfair’ trial in Portugal, where he is currently serving a two-year prison sentence).

The Framework Decision:

 prevents Julian Assange from demanding that Sweden show the merits of the alleged conducts (no prima facie requirement)

 thwarts attempts to challenge the extradition order (’surrender’) on the grounds that fundamental rights will be breached given that all EU members are signatories to the European Convention of Human Rights and therefore would not violate basic human rights.

 removes double criminality as a requirement because it assumes that offences that are listed under article 2.2. do not require a definition. This leads to serious miscarriages of justice given the varying definitions of offences - such as rape (consensual sex in Sweden) murder (abortion) and so on.

The EAW issued for Julian Assange ticks the "rape" box, despite the fact that the leading authority on sexual offences in the UK, the Oxford Professor Andrew Ashworth, argues that the conduct would not fall under rape in the UK given that the acts were consensual, and there is no allegation of criminal intent in Julian Assange’s conduct according to the police report.