The Assange case: a human rights perspective

Stephen Keim and Benedict Coyne, from Australian Lawyers for Human Rights, dissect the UK Supreme Court's decision which prompted Julian Assange to seek asylum in Ecuador ... Independent safeguard not discovered in the phrase "judicial authority" 

Julian Assange masks distributed by Brazilian journalists at Ipanema Beach, Rio de Janeiro

"Parliament is sovereign. This is not a case where parliament has told us that we must disregard or interpret away the intention of the legislation... Given that we are concerned with a serious interference with the right to liberty, I take the view that we should apply the clear intention of the United Kingdom legislature." 

Lady Hale, Assange v Swedish Prosecution Authority

JULIAN Assange, the founder of WikiLeaks, failed in his final domestic appeal against the enforcement of a European Arrest Warrant in favour of Sweden.

By a majority of 5-2, the Supreme Court found against Assange. 

The appeal centered on the interpretation of "judicial authority" in the 2002 European Council Framework Decision on the European Arrest Warrant and the surrender procedures between member states 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.

Assange's application to re-open the case on the basis that part of the reasoning had not been properly dealt with in argument has also been summarily refused.

He can still seek review by the European Court of Human Rights. 

The majority reasoning, in our view, unreasonably favours administrative convenience over common law attitudes to construction of legislation in accord with what happened in parliament and, in the absence of clear language to the contrary, in support of human rights safeguards.

Background

Assange, under house arrest without charge since December 2010, is wanted in Sweden on 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 November 18, 2010, a Swedish public prosecutor obtained from the Stockholm District Court a domestic detention order in absentia against Assange.

The order appears to be an equivalent of a domestic arrest warrant, in this case for questioning.

Under Swedish law, the detention order is sufficient for the prosecutor to proceed to issue a European Arrest Warrant.

The prosecutor issued an EAW and a UK administrative authority certified the EAW pursuant to the provisions of the 2003 Act.

In February 2011, an extradition hearing at Westminster Magistrates Court upheld the warrant. Assange appealed to the High Court and then, by leave, to the Supreme Court on what the court held was a matter of significant public importance.

While a variety of arguments were run in the lower courts, the appeal to the Supreme Court was on the one point involving the meaning of "judicial authority". 

Decision

Majority - Lord Phillips, Lord Walker, Lord Brown, Lord Kerr & Lord Dyson

The leading judgment of the majority was written by Lord Phillips, president of the court. The judgment addressed the meaning of "judicial authority" in both the Framework Decision and the 2003 Act.

The central questions were:

1. Whether the term "judicial authority" in the Framework Decision was broad enough to incorporate public prosecutors (without the attributes of independence and impartiality) as valid issuing authorities of EAWs; and
2. Whether the 2003 Act directly reflects that intention. 

The majority answered both considerations in the affirmative.

Although Lord Phillips' conclusion had five separate bases, 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 about 11 (of 27) member states to register public prosecutors as competent authorities to issue EAWs under Art 6(3) of the Framework Decision. 

The reasoning in turn relied on Article 31.3(b) of the 1969 Vienna Convention on the Law of Treaties, which states as a general rule of interpretation that, "any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation ..." may be taken into account.

Having established to their satisfaction the meaning of the key phrase in the Framework Decision, the majority sought to construe the words in the 2003 Act as necessarily reflecting their meaning in the Framework Decision.

This approach drew upon a EU legal rule stated in the Pupino case of the European Court of Justice - namely, that domestic courts must apply the principle of conforming interpretation in relation to framework decisions.

The majority also applied the common law presumption that the UK Parliament would not legislate in contravention of its international obligations.

The majority held that it was not permitted to apply the rule in Pepper v Hart - the jurisprudential basis for having access to extrinsic parliamentary material.

As a result, the majority did not give effect to the clear meaning of "judicial authority" in English.

It did not 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.

The majority did not give weight to amendments made during the passage through Parliament in accord with those assurances.

It held the Vienna Convention point determinative only if the "disturbing ... parliamentary material is disregarded" (Lord Walker at [93] - [94]).

It is difficult to understand, from half a world away, 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 and the matter of a person's freedom is at stake.

The dissent: Lady Hale and Lord Mance

Lord Mance agreed that "judicial authority" in the Framework Decision was capable of encompassing public prosecutors [217].

He held that the Framework Decision, Pupino and the EU principle of conforming interpretation were not determinative of the meaning of the phrase in the 2003 Act.

The minority expressed the view that the court's role was limited to construing "an Act of the UK Parliament" (Lady Hale at [173] and [192]) and "to elicit the true parliamentary intention in passing it" (Lord Mance at [246]).  

They found the majority's determinative Vienna Convention point unconvincing.

Lord Mance stated that "suspect practice consisting of the use and nomination of executive authorities by a few states" cannot satisfy the requisite "agreement" under Article 31.3(b).

The point made is that, since no agreed practice had been consciously entered into in knowledge of the ambiguity, no agreement existed which could be relied upon. At [191], Lady Hale expressed it in these terms:

"Failure to address minds to an issue is not the same as acquiescence in a particular state of affairs ... This seems to me to be a rather flimsy basis on which to hold that we are obliged to construe a United Kingdom statute contrary to both its natural meaning and to the clear evidence of what parliament thought it was doing at the time." 

Lord Mance acknowledged the construction approach that domestic legislation is presumed to comply with international obligations, but pointed out that it does not have absolute effect:

"[T]his presumption is subject always to the will of the parliament as expressed in the language of the Act read in the light of such other interpretative canons and material as may be relevant and admissible (at [217]) ... [and] involves no importation of international law into the domestic field (at [201])."

In our view, the presumption gives way to human rights considerations as Lady Hale pointed out at [176] referring to another framework decision case, Cando Armas, where Lord Hope stated:

"The liberty of the subject is at stake here, and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures ... The task has to be approached on the assumption that, where there are differences, these were regarded by parliament as necessary protections against an unlawful infringement of the right to liberty." 

Assange: no judicial protection in requirements for European Arrest Warrant

The human rights dimension

Counsel for Assange submitted that, in accordance with the jurisprudence of the ECtHR, public prosecutors cannot be "officer[s] authorised by law to exercise judicial power" within the meaning of Article 5(3) of the ECHR.

The majority disagreed:

"There is no principle of ECHR law which requires decisions to arrest to be made by an impartial judge (Lord Dyson at [148])." 

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.

This is reflected by Lord Mance's discussion at [223]-[224], where he pointed out that the domestic process of issuing arrest warrants (where a court was involved in Sweden) is an inapt analogue to the issuing of EAWs as the latter is a ... 

"more intrusive measure than a domestic warrant. In many cases ... [it] will uproot a defendant from his or her familiar and personal environment. It may therefore engage human rights issues ... The Framework Decision's insistence in articles 1 and 6 that a European arrest warrant should be a "judicial decision" taken by an "issuing judicial authority" can only have been intentional, designed to allay fears that the measure might be excessively or inappropriately deployed." 

Stephen Keim 
President, Australian Lawyers for Human Rights

Benedict Coyne 
Queensland Committee Member, Australian Lawyers for Human Rights 
 

See full judgment Assange v Swedish Prosecution Authority