Julian Assange and his possible extradition to the US: on the legal and procedural situation

24 January by Guillermo Garcia

The writing below is based on a conference by Professor Julien Pieret of the “Universié Libre de Bruxelles”, dated September 29, 2023, and related to the current legal and procedural situation of the extradition process of Julián Assange by the United Kingdom towards the US. This is a summary-synthesis of a subjective nature (I am a doctor of law) and not an opinion from a legal service or office in charge of the defense of J. Assange. It therefore has the value of a personal opinion and perhaps helps to understand the complexity of the subject and the issue discussed. And perhaps also, in part, why the extradition process is dragging on for so long.

1) The ECourtHR (European Court of Human Rights), based in Strasbourg, and whose main functions include monitoring compliance with the EConvHR (European Convention on Human Rights), has as one of its most relevant characteristics the possibility of admitting appeals by individuals against States for violations of the rights and freedoms contemplated in said Convention and that have signed and ratified the validity of said Convention in their territory. And this is the case, in principle, of the United Kingdom of Great Britain.

2) The Rules of Court includes an article, 39, regarding interim measures, which could serve to paralyze an extradition process while the ECourtHR decides on the merits of the matter, that is, the possible violation of rights and freedoms contemplated in the Convention. However, Professor Pieret mentions a case in which the Belgian State failed to comply with the mandate of said Court in application of said article, the Nizar Trabelsi case, who contrary to the mandate of the ECourtHR was extradited to the USA and where after ten years imprisoned in deplorable conditions, he was acquitted of the charges against him. Despite this, the Belgian State completely ignores him and does not demand his return, which is why he remains incomprehensibly and arbitrarily imprisoned in the United States.

Likewise, the United Kingdom has in the past shown little sympathy towards the aforementioned Court despite formally accepting its jurisdiction over its territory. Thus, in the event that said Court orders the suspension of extradition based on the aforementioned article 39, we must foresee the possibility that the United Kingdom disobeys and does not apply said provisional suspension of extradition despite being formally obliged to do so. .

3) In this way, it is advisable to warn against the idealization of Law and laws, because despite having well-founded legal reasons and the laws in his favor, it can happen - and this seems to happen in the case of Julián Assange - that those obliged to comply with said laws (in this case the States that have ratified the EConvHR) refuse to do so, among other things because said Court lacks the coercive force (a judicial police, for example) to force said States to comply with the international laws in the same way that a sovereign State does with respect to its citizens.

Thus, the effectiveness of international law and laws, even if they are in force, and therefore the States are formally obliged to comply with them, can be seriously limited depending on the political context (and at the international level according to the geopolitical context) given that said Effectiveness depends largely on whether a real force is available to enforce them.

4) In any case, there is hope that the ECourtHR will admit J. Assange’s case to processing and subsequently proceed to apply the aforementioned article 39 of the Rules of Court, regarding interim measures, with the consequent order to stop the process. of extradition, an aspect that Professor Pieret points out as particularly difficult for the ECourtHR, as indicated in point 2), which is why it is usually reticent and “timid” to apply said article.

Likewise, the lawyers involved remain hopeful that the ECourtHR will rule on the substance of the matter, that is, whether fundamental rights and freedoms contemplated in the EConvHR have been breached, such as:
- guarantees Guarantees Acts that provide a creditor with security in complement to the debtor’s commitment. A distinction is made between real guarantees (lien, pledge, mortgage, prior charge) and personal guarantees (surety, aval, letter of intent, independent guarantee). relating to freedom of the press and information,
- to a fair and equitable judicial process, as well as with respect to the extradition procedure,
- the prohibition of torture (including psychological) and inhuman and degrading treatment,
- etc.

Indeed, this is where the ECourtHR would compromise - as Professor Pieret points out - the prestige achieved by said Court over decades as guarantor of the fundamental rights and freedoms contemplated in the EConvHR. A resolution favorable to J. Assange would confirm that the aforementioned Court is the firm guarantor of said Convention against States and their domestic courts that do not comply with the EConvHR.
On the contrary, a non-admission of his case or a resolution unfavorable to J. Assange would mean a notable setback and would overturn the entire jurisprudence carried out by said Court for decades. Likewise, it would encourage other States to fail to comply with the EConvHR and behave with the same arbitrariness as the United Kingdom in this case.

5) Finally, Professor Pieret explains that, if J. Assange is extradited to the USA, said State does not recognize the EConvHR or the competence of the ECourtHR to judge whether human rights and fundamental freedoms have been respected in the case of J. Assange. Its equivalents on the American continent, that is, the American Convention on Human Rights and the Inter-American Court of Human Rights, are also not recognized by the United States. Therefore, it is to be expected that said State would act as arbitrarily or more, if possible, than the United Kingdom regarding J. Assange.

However, as has been pointed out, a favorable ruling by the ECourtHR in favor of J. Assange would further highlight the lack of willingness of these States to comply with their obligations with respect to International Law and, in particular, with respect to human rights and fundamental freedoms despite proclaiming themselves “Rules of Law”.

6) By way of conclusion, I would like to highlight that the purpose of writing this text is above all to point out where the strengths of Assange’s defense lie from a legal and procedural point of view in the author’s opinion, that is, there are reasons solid and well-founded legal arguments, and not just ethical ones, in their favor.

It could be said that the obstacles to his release indicated in this text are due more to reasons other than legal matters, that is, to the powerful and perverse will of those who consider themselves harmed by the Wikileaks revelations, which by the way are true, forgive the redundancy. Assange has not lied, but has exercised the human right (article 19 of the Universal Declaration of Human Rights (*) to make known to the international community information that deeply affects us and whose knowledge is deprived of us by leaders of hostile States. for this truth to be known.

In any case, despite the obstacles mentioned, knowing and identifying them should serve us well and be useful so as not to discourage us or be an obstacle to maintaining, but rather reinforcing, our conviction, our ability and our capacity to support Assange’s cause not only in the legal field. We must try to make as many people aware of the enormous injustices and arbitrariness that are being committed with Julián and how much we would all gain from his release. His freedom is ours.

(*) Universal Declaration of Human Rights, article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.



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