Assange loses appeal – but stays in limbo

May 30, 2012 –  by Bernard Keane

Julian Assange has lost his UK Supreme Court appeal against extradition to Sweden on a European Arrest Warrant to face sexual assault allegations in Sweden.

The 5-2 decision centred on the sole issue of interpetation of the term “judicial authority” meant in the British Extradition Act. The majority of the court found that the meaning of the term should be considered to extend beyond a court or judge to a prosecuting authority, reflecting the French meaning of the term in relevant European Union documents.

Assange’s legal team immediately asked for, and was granted, 14 days to consider the verdict on the basis that, in its view, it relied on a point relating to the Vienna Convention on Law of Treaties which had not been argued or considered during hearings. Assange’s legal team therefore now has two weeks to prepare an application for the Supreme Court to reopen the case.

The stay will delay any immediate moves to extradite Assange to Sweden, but leave him in the legal limbo he has been in since late 2010. The Swedish investigation of Assange and the financial blockade of WikiLeaks by Visa, Mastercard and PayPal at the instigation of the Obama Administration has severely disrupted WikiLeaks’s activities.

If extradited to Sweden, Assange will be held in detention while charges against him relating to a 2010 visit to Sweden are investigated (claims that he will be held “incommunicado” do not appear accurate). But while in Swedish custody, Assange will be exposed to the possibility of “temporary surrender” to the United States on a separate extradition warrant confected by the Obama Administration in relation to WikiLeaks’s publication of diplomatic cables and military logs and videos.

Swedish authorities have declined repeated offers by Assange’s legal team for Assange to be interviewed by them in the UK to investigate the claims against him.

The judgment summary makes some interesting observations. The court rejected Parliamentary material on the issue as inadmissible, and indeed in his statement to the court Lord Phillips explicitly noted that some MPs when debating the Extradition Act had interpreted the term “judicial authority” as relating only to judges and courts, and therefore incorrectly. The key paragraph in the decision appears to be:

“An earlier draft of the Framework Decision [the original EU decision to establish the EAW process] would have put the question in this appeal beyond doubt, because it stated expressly that a prosecutor was a judicial authority. That statement had been removed in the final version. In considering the background to this change, the majority concluded that the intention had not been to restrict the meaning of judicial authority to a judge. They relied, as an aid to interpretation, on the subsequent practice in the application of the treaty which established the agreement of the parties. Some 11 member states had designated public prosecutors as the competent judicial authority authorised to issue EAWs. Subsequent reviews of the working of the EAW submitted to the European Council reported on the issue of the EAWs by prosecutors without adverse comment and on occasion with express approval.”


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