Christophe Marchand
Blog post
2016
Ever since I began writing this blog, I planned to feature contributions from colleagues to whom I owe much inspiration and motivation. Today’s blog was written by Annemie Schaus and Christophe Marchand. Schaus is Attorney, Ordinary Professor at the Université Libre de Bruxelles and Marchand is Attorney, Specialist in International Criminal and Human Rights Law. They are both representing Julian Assange for the European Court of Human Rights litigation.
The legal case of Mr Assange is highly complex and seems like Daedalus’ labyrinth, where he would be imprisoned forever, running to escape the US Minotaur trying to eat him up. Only an international judicial body has the independence to challenge the unwillingness of three major States (United States, United Kingdom and Sweden) and support the courage of one (Ecuador). This happened on 5 February 2016, when the UNWGAD rendered public its decision in the case.
Having concluded that Mr Assange is currently in a situation of arbitrary detention, the UNWGAD has ordered the United Kingdom and Sweden to immediately release Julian Assange. This is the only Ariadne’s thread that would permit Mr Assange to escape the legal labyrinth he is facing and begin to stop the unacceptable inhumane treatment, arbitrary detention and unfair trial he suffers because of his work as a journalist and as a publisher for whistleblowing.
Unfair Prosecution in Sweden and Detention in the United Kingdom
Mr Assange is detained but he has not been charged with any criminal offence and has been denied full access to the criminal file. Sweden claims to want to investigate him for an alleged sexual offence. Mr Assange has denied being guilty of any crime and has always been ready and willing to answer questions. In December 2010 a Swedish prosecutor issued a European Arrest Warrant to extradite him for interrogation.
Sweden has played a curious game in being unwilling to use the usual international judicial cooperation in criminal matters and let the interview happen in London. In May 2015 the Swedish Supreme Court decided to confirm this four-year-old arrest warrant, in a split decision with one judge dissenting, forcing, at last, the Swedish prosecutor to begin diplomatic negotiations with Ecuador to let the interrogation happen according to the usual standards of international public law.
The Swedish investigation and prosecution reveal that this criminal case is not handled in the usual way by the Swedish prosecutor. It raises questions about the fairness of the proceedings and the real intentions of the Swedish prosecution. Mr Assange has already been questioned once in Sweden (for the one remaining suspicion at that time), and the woman herself says the police made it up and railroaded her.
The United Kingdom is enforcing this warrant even though the days Mr Assange has already spent in the Embassy exceed the maximum possible time he could ever spend in a prison if he were to be charged and sentenced in Sweden.
United States Wants to Hang Mr Assange
There is no doubt the United States government's prosecutors are busy with an in-depth, secret and invasive criminal investigation against Mr Assange, his lawyers, alleged sources and associates within WikiLeaks. The FBI confirmed this in court proceedings on 15 December 2015. This criminal investigation aims to make it a matter of “treason”, “espionage” or even “terrorism” to publish and reveal gross human rights abuses committed by the United States in the “War on Terror”.
It is not unreasonable for Mr Assange to believe that his fate in the United States would be a lifetime detained in the horrific Super-Max penitentiary machine. Mr Assange deserves respect and protection as a member of a vulnerable group of people inspired by the defence of human rights and committed to exposing abuses as whistleblowers or publishers.
Sweden has a Bloody Record of Illegal Cooperation with the United States
Sweden may seem to be the ideal democratic legal State everyone would dream to live in, but this image glosses over the close police and intelligence cooperation between the United States and Sweden. Since 9/11, Sweden has been condemned 17 times by international judicial bodies (the European Court of Human Rights, the UN Human Rights Council and the UN Committee against Torture) for not respecting the basic standards of the Geneva Convention on Refugees or the prohibition to extradite to countries where there is a risk of torture or inhumane and degrading treatment — with unacceptable and bloody consequences for the individuals involved and their families.
Inhumane and Degrading Treatment
Julian Assange has been confined within the walls of the Ecuadorian Embassy in London since 19 June 2012. The experts consider it is a situation worse than being in prison, where at least detainees can breathe fresh air or feel the warmth of the sun from time to time. This is not to mention the broken links with his children and partner.
The Onus of the UNWGAD decision is that Mr Assange is in detention
Despite the position taken by the United Kingdom and Sweden, this is a very usual and non controversial application of the case-law of the European Court of Human Rights on the definition of detention. ECtHR decided in many judgments (the first one being Aamuur v. France in 1996) related to limbo legal situations and the status of persons who remain "voluntarily" in transit zones of airports that these persons are "in detention".
There is no doubt that Mr Assange’s situation meets the legal definition of detention in inhumane and degrading treatment and that this is contrary to our 21st century human rights standards.
