WikiLeaks aside, Assange case strikes core of civil liberty

by Geoffrey Robertson,  February 3, 2012

Europe has blurred the line between enforcement and the judiciary.

JULIAN Assange’s current court appearance in Britain has nothing to do with sex or United States diplomatic cables or even with WikiLeaks. But it may make an important contribution to European law.

The United Kingdom Supreme Court will be considering the point I raised on his behalf when a Swedish prosecutor claimed to be a ”judicial authority” empowered to issue a warrant to have him extradited to prison in Stockholm. My written argument began quite bluntly: ”The notion that a prosecutor is a ‘judicial authority’ is a contradiction in terms.”

Judges must, as their defining quality, be independent of government. Police and prosecutors employed and promoted by the state obviously cannot be perceived as impartial if they are permitted to decide issues on the liberty of individuals.

They are expected to be zealous in working up evidence against a suspect, so they are the last people who can be trusted to weigh up impartially the evidence they themselves have drummed up. That is a matter for a court.

So how comes it that in Sweden and many other European countries, prosecutors and even policemen and women are allowed to issue a so-called European arrest warrant, which has the draconian effect of requiring the arrest of people in another country and dragging them for trial in the state which has issued the warrant?

The answer partly derives from the lack of principle in the historical development of European criminal law, where for centuries prosecutors and ministers of justice have exercised powers that in the UK and Australia would need judicial approval. That Napoleonic figure, the ”investigating magistrate” – a judicial official who conducts a pretrial investigation – has helped to muddy the distinction between law enforcement agencies and judges.

So when the major European countries got together 12 years ago to devise a fast-track extradition process, and decided that European arrest warrants requiring the arrest and surrender of individuals could be issued by ”judicial authorities”, there was some confusion about what that term meant, and whether police and prosecutors might qualify. Sweden and some other countries thought they did.

It will be inconvenient if Assange’s appeal succeeds, because European countries will have to change their laws. But the argument from inconvenience is the classic way for civil liberties to be lost.

The principle of judicial independence is especially important in the Assange case, where an allegation of what Swedes describe as ”minor rape” (another contradiction in terms) was dismissed by a very experienced Stockholm prosecutor.

It was later revived (in an unfair process from which Assange was excluded) by another prosecutor with a gender agenda who was given to issuing self-promoting press statements and withholding exculpatory evidence. She was, therefore, an inappropriate person to take what should have been an impartial decision about whether a European arrest warrant should be issued against her quarry.

So the point is important, as the UK’s Supreme Court said in December when granting leave to appeal. Its decision can be expected in April or May this year.

A ruling in Assange’s favour would not prevent Sweden from extraditing him eventually, but it would have to change its procedures and have his European arrest warrant issued by a court. Other countries – France and Germany among them – would have to change their practice of having police and prosecutors issuing European arrest warrants as well, if they want to get their hands on suspects in the UK.

The case comes at an interesting time in Britain, where there is a debate over whether the country’s acceptance of the European Convention on Human Rights should be supplemented or replaced with a British Bill of Rights which would strengthen traditional liberties.

You cannot get anything more traditional than the liberty that flows from the independence of the judiciary.

The notion that anyone in the UK can be arrested, deported, denied bail and then tried in secret (the procedure for dealing with sex crime charges in Sweden), all on the say-so of an obviously prejudiced foreign prosecutor, could strike many as oppressive.

Former UN appeal judge Geoffrey Robertson, QC, advises Julian Assange and is the author of Crimes Against Humanity and The Justice Game.

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