Julian Assange to launch fresh extradition appeal in high court
WikiLeaks founder will begin new legal challenge against attempts to send him to Sweden to face sexual assault charges
11 July 2011
The Australian will begin the latest stage of his legal challenge against attempts to send him to Sweden to face charges relating to alleged incidents with two women during a trip to Stockholm in August 2010. One accusation, that he had sex with a woman while she was asleep, would amount to rape under Swedish law if proved. Both women had previously had consenting sex with Assange. He denies any wrongdoing.
Swedish authorities secured a European arrest warrant in December and shortly afterwards he was detained by British police and bailed. At his first appeal in February, Westminster magistrates court – sitting at Belmarsh – ordered that he should be extradited, despite his defence alleging he would not get a fair trial and that the extradition attempt was politically motivated. The arrest warrant came as WikiLeaks was releasing thousands of classified US diplomatic cables it had obtained through a whistleblower.
Assange's legal team argued that the conduct of the Swedish prosecutor amounted to an "abuse of process" because the allegations against him were initially dismissed and then reopened, the prosecutor had refused Assange's offer of an interview and documents had not been made available to him in English. They also claimed the Swedish prosecutor, Marianne Ny, was "biased against men". Westminster magistrates found against Assange and ordered his extradition to Sweden.
Assange has claimed this would make it easier for US authorities to seek his extradition to face possible charges over his release in 2010 of hundreds of thousands of classified documents including the US diplomatic cables and military logs from Afghanistan and Iraq. Before their unsuccessful appeal in January, Assange's legal team warned there was "a real risk" he could face the death penalty in the US or detention in Guantánamo Bay.
Assange has appointed a new legal team for Tuesday's hearing. His previous representative, media lawyer Mark Stephens, has been replaced by Gareth Peirce, who has represented the Guildford Four, the Birmingham Six and Moazzam Begg, a British Muslim who was held at Guantánamo. Ben Emmerson QC, who specialises in European human rights law, will be Assange's barrister, replacing Geoffrey Robertson QC, who acted for him in January.
The changes are thought to be part of a more conciliatory approach by Assange. Peirce's office would not comment on their strategy on Monday, but she has been previously quoted indicating the need for sensitivity and respect in the case.
"Each of the human beings involved deserves respect and consideration," she reportedly wrote to former US senator Tom Hayden for an article in the Nation, a US magazine. "It is hoped that whatever steps as are required to be taken in the future will be taken thoughtfully, with sensitivity and with such respect."
Assange recently filmed an online fundraising advert in which he appeared to take credit for inspiring the uprising in Egypt. The commercial spoofs the MasterCard ads, saying: "Fighting legal cases across five countries: $1m" and "added cost due to house arrest: £500,000" before concluding with Assange watching footage on his laptop of Egyptian protesters streaming towards Tahrir Square with the voiceover: "Watching the world change as a result of your work: priceless. There are some people that don't like change. For everyone else there is WikiLeaks."
WikiLeaks issued a statement in June marking Assange's six months under house arrest at Ellingham Hall in Norfolk, the 10-bedroom country home of Vaughan Smith, founder of the Frontline club in London. Assange celebrated his 40th birthday there on Sunday with about 100 guests.
WikiLeaks said Assange had not been charged with a crime in any country and complained his conditions were "excessive and dehumanising".
The case will be heard by Lord Justice Thomas and Mr Justice Ouseley in court four of the Royal Courts of Justice and will begin at 10.30am. It is scheduled to last for two days. If Assange loses the case he could yet appeal to the supreme court. Guardian
This would be entirely laughable if the consequences weren't as serious as they are.
Assange faces enforced leisure to ponder folly of a law passed in haste
July 12, 2011
As Julian Assange's extradition appeal begins today in London, the British government is considering a parliamentary review which recommended drastic changes to the European Arrest Warrant legislation. Widely regarded as a seriously flawed instrument, the extradition mechanism that will decide Assange's immediate future was agreed to immediately after September 11, 2001. Its purpose was to enable speedy prosecution across Europe of suspects wanted for terrorism and serious crime under a warrant that could be honoured with minimal scrutiny.
There are two serious problems with the way this law operates: the failure to protect the human rights of the accused, such as a guarantee of a fair trial; and its misuse. A vast number of warrants have been issued, predominantly to prosecute trivial offences or matters that would be regarded as civil matters in Britain.
Requesting states do not even need to provide any evidence. And for 32 listed crimes there is no requirement to prove double criminality. That is, the alleged conduct need not be regarded as a crime in the country from which an accused is extradited. If one European Union state provides a different definition of an offence but the same conduct would not meet the definition of the offence in the other country, the person will still be extradited.
Poland issued 5000 warrants in 2008. People have been trawled through the legal system for crimes such as stealing chickens - as in the case of a person extradited to the Czech Republic.
Clearly there has been no respect for the principle of proportionality in the application of the law. David Blunkett, the British home secretary who presided over the law's introduction, says the system needs reform: ''When we agreed to the system we believed people would act rationally.''
A British resident, Jacek Jaskolski, successfully defended a warrant issued by Poland for exceeding his overdraft limit, but the warrant has not been withdrawn, limiting his ability to visit other European countries without fear of arrest.
Even if an individual can successfully defend a warrant, the country seeking his surrender is under no obligation to remove the outstanding warrant. Should Assange successfully resist the warrant issued by Sweden, there is no guarantee he would not face a similar fate.
The treaty needs to be amended to remove this adverse consequence.
The human rights group Fair Trials International says there are many cases in which serious injustices have resulted, such as people serving prison sentences after an unfair trial or being held in detention for years before they can appear before a court to establish their innocence.
A British citizen, Andrew Symeou, was extradited to Greece in 2009 and charged with manslaughter over the death of a man two years earlier. Despite compelling evidence of mistaken identity and the retraction of statements by witnesses who alleged police intimidation, Symeou remained in jail for 11 months before he was released on bail and bound to remain in Greece awaiting his trial.
Two weeks ago, after a four-year ordeal, he was acquitted by a jury, his parents having spent their savings to support his case in the intervening years. The prosecutor himself recommended Symeou be acquitted.
In Assange's case, the original prosecutor, Eva Finne, declared there was no rape case to answer, despite the far broader definition of rape in Swedish law than in Britain. There is no provision for bail under Swedish rape laws, so Assange would remain in jail until the Swedish prosecution case is heard, however long that takes. The miscarriage of justice in Symeou's case would have been avoided if appropriate scrutiny of the evidence by a court in the country granting the extradition were a requirement.
Assange is fighting extradition for a crime that does not exist in Britain. Under Swedish law, rape is not about the withdrawal of consent but rather is defined by the use of physical force in acts of sex. Rape is a category one crime under the European Arrest Warrant regime, though Assange's case involves the most minor version of this charge under Swedish law.
Assange's lawyers say it is unlikely he could be prosecuted on the alleged facts under British law. The magistrate who heard the case said the behaviour would be an offence in Britain, but Britain's leading criminal lawyer, Professor Andrew Ashworth, disagreed.
Only proper scrutiny of the evidence could determine who is right. But that would be immaterial in any case, as there is no double criminality requirement for rape. If a country ticks the ''rape'' box, it doesn't matter if ''minor rape'' as defined by Sweden is not a crime in Britain. Moreover, Assange will be tried in a closed court in a case he believes is politically motivated. How will the world scrutinise proceedings under those circumstances?
Blunkett admits he was not sensitive enough to potential problems. Such oversights have taken a terrible toll on people caught in a system with no proper safeguards, including Assange, an Australian citizen.
Mary Kostakidis is a journalist with an interest in human rights, government and the law. Sydney Morning Herald