11 November 2022

The Penultimate Chapter in the Case of Julian Assange

A Scenario at the European Court of Human Rights

After almost four years under unchanged detention conditions in the high-security prison Belmarsh, Julian Assange is facing yet another challenge. The upcoming decision of the High Court of England and Wales might ultimately determine whether Julian Assange can be extradited to the United States where he would face up to 175 years in prison if convicted on all 18 charges.

If the High Court concludes that the first-instance proceedings should not be reopened, legal recourse in the United Kingdom would be exhausted. The extradition request by the U.S., which was granted by former Home Secretary Priti Patel on June 11, 2022, could then no longer be opposed by any legal means at national level.

Many voices are therefore pinning their hopes on the European Court of Human Rights (ECtHR). After all domestic appeals from a member state of the Council of Europe – of which the United Kingdom remains a member even after its withdrawal from the European Union – have been fully exhausted, the ECtHR can be petitioned as a last resort. This is, most likely, what will happen in the Assange case. The human rights implications of the case, especially the impact on investigative journalism in Europe in its function as a watchdog and information guarantor of democratic societies, were made clear by Dunja Mijatović, Council of Europe Commissioner for Human Rights, in an open letter to the Home Secretary. The letter went unanswered, as well as a petition with over 90,000 signatures appealing to the minister accordingly.

I. The Ambivalent Relationship Between the UK and the ECtHR

The government’s line so far on the Assange case and the already strained relationship between Britain’s understanding of state-sovereignty and the ECtHR’s jurisprudence have led some observers to doubt that a decision by the Court would be respected by the British government. Most recently, criticism of the ECtHR took on outspoken stridency in the case of K.N. v. United Kingdom, after the Court halted a deportation flight from the United Kingdom to Rwanda on the night of June 14, 2022. The background was a review of the UK-Rwanda Asylum Partnership Agreement – a controversial project under which the UK seeks to outsource some of its asylum and migration processes to Rwanda. Priti Patel accused the Court of making politically motivated rulings, and Justice Minister Dominic Raab shortly thereafter introduced a bill aimed at largely decoupling Britain’s human rights system from the Strasbourg system – a long-pursued project of the Tories. British courts would thereby be empowered to deviate from the ECtHR case law in the future. The media echo and public criticism caused by the Court’s decision have apparently further hardened the British government’s position. This is also reflected in the personnel decisions of the new prime minister, Rishi Sunak, who not only reappointed Raab as Justice Minister, but also Suella Bravermann. She is known to be committed to Britain’s withdrawal from the ECHR, as Home Secretary.

Above the headlines, however, one fact should not be lost sight of. The Home Office issued a flight ban because of the emergency decision and has temporarily suspended the deportation to Rwanda. Despite the heavy criticism, the decision from Strasbourg has been complied with. Given the UK’s comparatively positive statistics on respecting ECtHR rulings, this is more ordinary than the accusations from ministries would suggest. For some time now, the ambivalence between open rejection and (largely) formal respect for the ECtHR has characterized the UK’s behavior. David Cameron was “physically sickened” that the blanket ban on prisoner voting in the UK was, according to the ECtHR,1) a violation of Article 3 ECHR, and Theresa May felt Article 8 ECHR – the right to respect for private and family life – was “perverted” by the Court’s interpretation. In this respect, the recent Home Office and Ministry of Justice outrages are part of a British tradition that has been limited to the comparatively few ECtHR decisions which challenges political agendas of great symbolic impact to the electorate.

II. Why Interim Relief Is Barely Within Reach, But Indispensable

As a result, both optimism and doubt seem reasonable in the case of Julian Assange. Over such speculation, however, a crucial legal fact should not be missed: The individual complaint that can be filed with the ECtHR will not have a suspensive effect. It does not suspend the execution of either the judgment of the national court nor the actual extradition order of the administration. Somewhat clumsily, as will be seen, the general information provided by the Court to complainants as assistance says: “In any case, you must abide by the final decision of the national court […].”

The problem is apparent: this would present the ECtHR with a fait accompli. For example, in the case of a house being ordered to be torn down, a decision by an administrative court was invalid if the demolition order challenged by it was overturned after two years in favor of the plaintiff. In the meantime, this house would have been reduced to ashes and rubble by the unrestrained enforcement of the official demolition order. The Assange case would be no less absurd. Pending a ruling by the ECHR, Assange would have been handed over to the U.S. by way of extradition enforcement. Should a decision be made in his favor, the U.S. would at best plead that it was not bound by a decision of a European court. At worst, the repatriation would be impossible for factual reasons.

The British government could feel relatively comfortable in this scenario. The High Court’s last-instance ruling would give extradition the hallmark of the rule of law. Concerns and objections, which would certainly be raised even after a ruling by the High Court, could be dismissed by the British government with reference to the independent examination and independence of the judiciary. Formalistically, one could argue that a judgment of the ECHR would be respected as soon as it is handed down. Until then, however, it would only be consistent and lawful to carry out the extradition and, for the rest, to trust in the rule of law in the USA. This dogmatic argumentation would not protect the British decision from criticism. However, parts of the international community would probably be restrained. It would simply not constitute an open breach of international law or a direct rejection of a decision of one of the most important bodies of human rights protection, but rather a sign of political contempt – and thus a narrative difference that should not be underestimated.

The only remedy that would offer an alternative to this scenario is a successful application for the adoption of provisional measures before the ECtHR (Art. 39 of the ECtHR’s Rules of Procedure). Such a procedure would allow the Court to provisionally suspend extradition to the U.S. to ensure effective legal protection through the actual main proceedings. However, considering the number of applications, successful proceedings are the exception. In 2021, out of 1,920 filed applications for interim relief, the ECtHR granted 227 applications, which accumulates to slightly less than 12 percent of the cases. Since it is necessary to deviate from the regular execution of a national judgment, the requirements for a successful application are challenging. The Assange case, however, is after all within the scope of Article 3 ECHR – the absolute prohibition of torturing people or subjecting them to inhuman or degrading treatment – the article of the ECHR that by far carries most orders in interim relief, especially around extradition.

On several occasions in the past, the ECtHR has found itself compelled to provisionally suspend extraditions to the United States based on the health of persons concerned.2) This included not only cases involving serious health problems in which the person to be extradited was suicidal, but also applicants with milder medical conditions, provided that the impending conditions of detention were likely to lead to drastic deterioration in health. This mainly concerned cases in which applicants were threatened with detention under so-called “Supermax Standards” or “Special Administrative Measures (SAMs).” Supermax standards refer to particularly severe forms of solitary confinement. Inmates are detained 22.5 hours a day in 3.5m x 2m cells and deprived of any means of orientation – sideway windows, watches, alarm clocks etc.3) Many inmates suffer pathological trauma because of the extreme isolation and lack of natural environmental stimuli.4) SAMs, on the other hand, are measures usually added to solitary confinement to audio-visually monitor inmates and further reduce social contact to a narrowly contingent minimum.

III. Primacy of Diplomatic Assurances – an Outlook in the Assange Case

In the case of Julian Assange, the challenge will not lie in demonstrating the steady deterioration of his health. Already, the findings of expert witness Prof. Dr. Michael Kopelman in the proceedings before the Magistrate Court were clear in this regard. Assange not only suffers from clinical depression, indicated by extreme sleep and weight loss, auditory hallucinations, and a strong feeling of helplessness, from an autism spectrum disorder and Asperger’s syndrome, but is also at risk of suicide if extradited. In addition, Assange has suffered a mild stroke about a year ago, confirming the progressive deterioration in his health. The decisive factor will rather be the significance that the ECtHR assigns to the diplomatic assurances given by the United States. These assurances, which have already proven successful in British courts, aim to provide a human rights guarantee. They promise to avoid scenarios of total isolation, draconian detention conditions, and inadequate medical care.

The ECtHR jurisprudence recognizes diplomatic assurances in general. In many extradition cases, including those involving detention under supermax standards or SAM’s, the Court has overturned safeguards, following wide-ranging U.S. assurances.5) To assess the credibility of diplomatic assurances, the ECtHR has developed a set of criteria.6) However, these have been the subject of controversy, particularly since the decision Othman.v. United Kingdom.7) In its ruling, the Court found that various sources provided evidence of a systematic practice of torture in Jordan, used by the intelligence service against detained Islamists. Nonetheless, the judges considered the assurance that all forms of torture be refrained against the person to be extradited to be sufficient for extradition to be lawful. The Court based its reasoning inter alia on the influence of the king, who, according to the Court, had the ability to enforce the assurances given.

The crucial role played by diplomatic assurances is therefore undeniable. Given the interest of states in efficient criminal prosecution and the maintenance of interstate legal assistance, it is quite understandable. However, diplomatic assurances are regularly given a weight that is not necessarily comprehensible in view of the cautious theoretical statements of the courts on this matter as well as the reality in the target states. It seems that a broad package of diplomatic assurances, regardless of the severity of the health impairment and the expected conditions of detention, can sooner or later eliminate almost any human rights concern. On the one hand, this may serve to strengthen intergovernmental cooperation, but it also reaffirms the reproach – made, for example, by former UN Special Rapporteur on Torture, Manfred Nowak – that diplomatic assurances are often an attempt by states to circumvent their obligations under international law.8)

To paraphrase the German Federal Constitutional Court: Ultimately, a court may not feel it is relieved of its obligation to make its own threat assessment in the target region by diplomatic assurance.9) It is hoped that the ECtHR will take this principle into account. The sheer duration of the expected prison sentence without any prospect of a significant reduction, which is likely to condemn Julian Assange to die in custody from the outset, requires a critical look at the American criminal proceedings10) – which, in fact, the Court is not unfamiliar with.11) Additionally, the Court will also have to consider that the assurances given by the U.S., in contrast to what is usual in diplomatic practice, were declared with strong reservations. For example, waivers of supermax standards or SAMs are subject to the condition that Assange’s behavior should not necessitate such measures. A clause that is so open for interpretation hardly seems compatible with the absolute character of Art. 3 ECHR, which must be considered when examining extradition.

Thus, the specifics of the Assange case bear to some extent the hopes placed in the ECtHR. At the same time, bilateral and multilateral practice, and the apparent reliance on diplomatic assurances by national and international courts show that proceedings before the ECtHR will depend on political factors over which an individual, as well as the public, have very limited influence.