Mr. Assange, the founder of the whistle-blowing website Wikileaks, was arrested in London on Tuesday 7th December after voluntarily attending a police station following the issue of a European arrest warrant for his extradition to Sweden.
Mr. Assange denies the charges of sexually assaulting two women but was refused bail in a Westminster Court, despite some notable celebrities, including the journalist John Pilger and the film director Ken Loache offering surety.
Mark Stephens, Mr. Assange’s lawyer, has vowed to appeal, telling BBC1’s Andrew Marr Show that ‘The Chief prosecutor in Sweden dropped the entire case against him, saying there was absolutely nothing for him to find back in September’ and that ‘it does seem a political stunt’.
Will Mr. Assange escape extradition?
In the light of the recent political brouhaha surrounding Wikileaks just what are the chances of Mr. Assange escaping extradition?
The full hearing to extradite Mr. Assange to Sweden will begin next week but may be adjourned if the district judge considers either side needs more time. It may be that Mr. Assange’s lawyers will seek a further application for bail which was initially refused by the judge who concluded that the serious nature of the allegations and Mr. Assange’s comparatively weak community ties in the UK provided substantial risk he would fail to surrender. Mr. Assange is neither an EU national nor resident in the UK and this, alone, would make it difficult for a judge to grant him bail.
So what exactly is a European arrest warrant?
The European arrest warrant was established as a ‘fast track’ way of extraditing persons charged with a criminal offence to stand trial in the country where the offence was committed. The principle is that all the participating countries have legal systems which meet similar standards, and fully respect human rights. Thus, if one country demands a person’s extradition, the other must grant it, unless a few key grounds can be demonstrated.
The grounds on which a court can refuse an extradition under an European arrest warrant are few - ranging from the technical, for example, if the European arrest warrant has not been properly completed - to human rights issues where it can be demonstrated that human rights have or will be violated in the country seeking the extradition.
For Mr. Assange to avoid extradition he would need to use a technical argument, such as the warrant not showing specifically what law has been broken. However, technical errors are usually resolved and the warrant reissued.
Or, he would need to demonstrate human rights violations. If he can persuade the court that he won’t get a fair trial in Sweden or that the warrant is politically motivated or it would breach his right to freedom of expression then the extradition may not go ahead.
It would seem that Mr. Assange’s defence will have to hinge on possible human rights violations, although these are notoriously difficult to prove under a European arrest warrant.
Extradition to the United States
Afua Hirsch has written in The Guardian on 8th December 20010 that criminal charges are problematic – essentially because the United States currently has no law available with which to charge Mr. Assange. Although the Espionage Act of 1917 makes it a crime to disclose information relating to national defense to any person not entitled to receive it, its original purpose was to prosecute insiders committing acts of espionage or leaking. It has not been used successfully against media organizations.
Hirsch goes on to say that another possible option open to United States prosecutors is conspiracy to commit espionage if they can show that Assange directed or assisted others in violating the espionage act. However, as Assange was merely the recipient of the leaked documents it is difficult to see how this would stick.
Another tack might be trafficking in stolen government property, but as Hirsch points out, anyone who has reported, forwarded or linked the information via tweets, Facebook or email will also be guilty.
Any possible extradition to the United States is further complicated by the constitutional status in the U.S. of freedom of speech which is contained in the first amendment. It is difficult to see how any criminal action could be brought against Mr. Assange with the protection the first amendment gives to freedom of speech.
In any case, any United States action would not be possible until the conclusion of the Swedish extradition process. One thing seems certain: the twists and turns and legal argument in Mr. Assange’s extradition case are likely to rumble on for some time.
Further Reading:
The European Arrest Warrant - More Problems Created Than Solved
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