Pearls and Irritations

Julian Assange’s fight against extradition to the United States from the UK highlights breaches of his rights under European human rights law. The European Court of Human Rights (ECtHR) is likely to take a very dim view of the United States’ conduct because to allow extradition would breach a number of Mr Assange’s human rights. But it is a long road to the EctHR.

The proceedings against Julian Assange continues to generate significant media coverage around the world. The case against Assange is extraordinary in many ways, and one of those is that it sets a dangerous precedent for the protection of human rights in the UK. This commentary outlines the breaches of Assange’s human rights in the European Convention of Human Rights (herein after ECHR) and how he can seek effective protection against encroachment of his rights.

The European Human Rights framework is structured and clearly formulated. Any individual residing on European territory benefits from the protection of human rights. These human rights are clearly articulated by the ECtHR.

An individual needs to exhaust domestic remedies prior to applying his or her case to the ECtHR. Hence, many European countries allow for direct application of ECHR provisions in domestic courts to minimise the risk of unnecessary delays in according justice. Although the framework is designed to protect individuals at the earliest stages of proceedings, it is the unfortunate truth that the ECtHR has a significant case load and back log. The ECtHR proceedings itself take a few years to firstly rule the application admissible and subsequently, to consider the case. Hence, proceedings are lengthy, and it can take years before an individual can argue his or her case in Strasbourg.

Although the UK is in the process of leaving the European Union, its membership of the Council of Europe remains and currently the UK purports to adhere to European Human Rights Law. As a Member State, the UK has committed itself to honouring ECtHR precedent and protect the rights outlined in the ECHR. When considering the proceedings against Assange, there are at least three relevant charter provisions that are at stake. The potential breaches of these human rights provide him sufficient grounds to apply for consideration to the ECtHR.

Effective participation in proceedings

The right to a fair trial has been enshrined in the ECHR and has been strongly supported by the ECtHR. This right protects individuals against arbitrary government and prescribes fair procedures. Relevant to Assange are a few specific protections.

The equality of parties to proceedings is imbalanced. Equality of arms is a right encompassing the protection of many elements in proceedings. Relevant to Assange’s case is access to the right to counsel, documents needed to effectively prepare his defence and fitness to stand trial. The importance of these rights has been recognised in Strasbourg. The right to be effectively defended by counsel is one of the fundamental features of a fair trial. The ECtHR has firmly protected the right to counsel on numerous occasions and argued that access to counsel is of critical importance for an individual to effectively defend him or herself. Despite this, Assange’s access to liaise with counsel has been restricted, demonstrating a clear violation of the ECHR. In the same vein, Assange has been denied access to relevant documentation underpinning the charges against him. The ECtHR has scrutinised prosecutorial conduct involving withholding material from defence stressing that an accused must be provided with an opportunity to have knowledge of and comment on evidence adduced by the prosecutor. Lastly, the importance of competence to undergo legal proceedings is a right implicit in the very notion of an adversarial procedure.

The ECtHR has confirmed several cumulative conditions that governments and the courts are required to protect. . One of these conditions is to ensure the defendant is in a position of sound decision making – that is, to make well-informed choices when defending oneself against criminal charges. Fitness to undergo legal proceedings is assessed on the ability to understand the situation and subsequently effectively instruct counsel based on rational decisions. Due to his prolonged exposure to psychological torture, Assange’s mental and physical health is rapidly deteriorating. This affects his sound decision making and therefore, violates his right to a fair trial.

Life without parole and prohibition to torture

Many of the ECtHR cases involving prospective human right violations when extradited were of applicants fighting their extradition to the United States. Applicants rely upon the European Rights of right to live and protection against exposure to torture when extradited. In the seminal case Soering, the ECtHR protected an individual by concluding that the prospect on capital punishment in the United States, would violate the applicant’s rights that protect him against inhumane degrading treatment and torture. Since Soering, there have been a number of cases involving an extradition request by the US. In 2012, the ECtHR ruled in Vinter and Others v the United Kingdomthat life without parole is a violation of the prohibition of torture when considering a class action filed by UK inmates. In that same year, the then Home Secretary of the UK, Theresa May, blocked the extradition of Gary McKinnon due to high risk of suicide if he were to be extradited to the US. Aside from political change, the landmark decision of Vinter and Othershas shifted the ECtHR attitude towards extradition requests involving the prospect of life imprisonment. In 2014, it ruled that a life sentence without the possibility of parole, should be considered as equivalent under the prohibition against torture due the absence of prospect of release when considering a US extradition request. Aside from an unfair trial in Virginia, Assange is facing 175 years imprisonment when extradited to the US. Needless to say, this is an effective death penalty.

It is not solely the prospective sentence that mounts to  exposure to torture, in an affidavit filed by the US prosecutor, it was argued that Assange will be denied the rights and protections safeguarded by the US Constitution’s First Amendment. This is inextricably linked to the prospect that Assange will face an unfair trial and subsequent life imprisonment without a chance of ever returning home to his family. The US’ conduct in relation to the proceedings against Assange has also been addressed in the Council of Europe’s Parliamentary assembly that voted to oppose extradition of Assange to the US last Tuesday.

Although the circumstances outlined above indicate Assange has a strong case, it can take years before the ECtHR could consider his case and ensure justice. Other cases involving extradition requests to the UK have demonstrated that these lengthy proceedings can take up to 15 years.

Assange has a strong case for consideration by the ECtHR. In theory, the UK has to protect Assange from human right violations on its territory. The developments during his proceedings, however are demonstrating that many of his fundamental rights are being disregarded by the UK government and judiciary. Considering other extradition cases against the UK considered by the ECtHR, Assange risks being in detention for the next decade prior to applying his case to the ECtHR. Over sixty medical experts recently urged Assange’s release due to his concerning and endangered health conditions. Assange does not have time to ‘face the music’ and await his case to be considered by the ECtHR. His current physical and mental condition demonstrate a severe risk of him dying in Belmarsh prison.

Greg Barns is a barrister and Adviser to the Australian Assange Campaign.  Lisanne Adam is a Netherlands trained lawyer and an adviser on EU Law

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