What’s it to the EU? Assange’s extradition

Enhanced protection in law by means of a proposed EU directive might yet be Assange’s real legacy and contribution to freedom in reporting information


Julian Assange’s arrest at the Ecuadorian embassy in London in April 2019 marked seven years since he first hid there to avoid extradition to Sweden. Five days after Assange’s arrest, the European Parliament convened a plenary session (for 27 minutes) to prompt a discussion of the most general kind. No motion was proposed. No resolution was passed. The discussion was notionally about Assange and extradition arrangements but Parliament showed little grasp of the rules and practice of extradition.

A consensus, by a large majority of 591, voted for ‘journalists or whistleblowers’ having enhanced protection in law by means of a newly proposed EU directive. This might yet be Assange’s real legacy and contribution to freedom in reporting information – albeit incidental to the causes he himself serves. Such a directive may have a broader significance in other cases worthier than Assange’s own. Within days, the European Commission responded to this impetus for a new whistleblower directive. The Commission did so carefully – and without mention of Assange.

Extradition: judicial not political

Assange, an Australian national aged 47, is accused of sex offences, including rape, in Sweden. To suggest that a Swedish-issued extradition warrant was, or is, somehow part of a plot to send Assange to the United States of America is fanciful and is readily discredited. A legal practitioner who has the slightest passing interest in extradition is instantly able to say why this is so. Events which came to pass earlier this year saw the US government seek Assange’s extradition from the United Kingdom. Sweden sustained, and did not cede, its prior position that it sought Assange’s extradition to face trial on indictment for sex offences. Assange’s claim for asylum is hopelessly misconceived: a claim for asylum is a claim seeking protection from a person’s home State; Assange’s home State is Australia; there could be no suggestion (indeed there is not) that Australia could not protect Assange.

The whistleblowing aspect of the American request is controversial, but States plainly are entitled to assert protection of national security-level information deemed so sensitive that it is not in national interest to publish it. Information published by WikiLeaks imperils individual lives. Publishing the names of persons who acted as paid interpreters for Allied Forces in the Middle East imperilled the lives of those named persons. No responsible journalist would have published those names. Assange, Manning and Snowden surely recognise this. Press freedom is a fundamental European civic right which is not unlimited.

Proper use of parliamentary time?

Parliaments can debate what parliaments choose to debate. Parliaments are sovereign chambers, but a citizen of the European Union might well ask: Was this proper use of parliamentary time? The European arrest warrant schema conceived that European arrest warrants should be designated to judges and so de-politicised. The decision as to whether Assange’s extradition should be ordered, and whether the Swedish warrant or the American request should take priority, are not political decisions: these are judicial decisions.

"Within days, the European Commission responded to this impetus for a new whistleblower directive. The Commission did so carefully – and without mention of Assange."

In any event, the European Parliament decided to convene a discussion about Assange. Did parliamentarians heed how extradition arrangements work in the modern world? In short: no. Assange’s characterisation and description by European parliamentarians was really nothing to the point of the merits of the extradition litigation. Some speaking in Strasbourg called him a champion of press freedom. Some damned him. Extradition arrangements hardly featured in the discussions. A dramatic highlight was when a former Nobel Peace prize winner, Mairead Maguire, collected a whistleblower’s award on his behalf at the European Parliament. European parliamentarians founded the award in 2018 to honour murdered Maltese journalist Daphne Galizia. The award recognises ‘individuals or groups who have been intimidated and/or persecuted for uncovering the truth and exposing it to the public’. Mairead Maguire spoke of Assange’s candidacy for the award: ‘He told us exactly what was happening in Iraq, Afghanistan, where civilians are being killed through war. And we have the right to know that. So, he revealed to us the horrors of war carried out in our name by the US, NATO forces. And because he told the truth to the world he is being punished and silenced.’

Member state differences

The real value of the Parliament’s discussion lay with its recognition that the laws governing whistleblowers are particular to individual European Union Member States. This results in remarkable differences in legal approaches between Member States. Only ten EU Member States have enacted laws specific to protecting whistleblowers. The directive proposed is intended to introduce with legal effect the result across Member States that, if no appropriate action is taken when a complaint is made in a Member State, or a report to the authorities receives no response, it will be lawful for whistleblowers to make public their disclosures (rather than rely on administrative discretion). Voting will now take place on what are to be the parameters of the EU whistleblowers directive. When the directive has been finalised, Member States will have two years in which to implement its intended effect into their own legal system.

Within days, the European Commission took care to steer publicity about the directive away from what had been a principal focus on Assange and toward the economic integrity of the Union. Christian Wigand, a spokesperson of the Commission, clarified that the new directive is to be a ‘broad agreement’ which applies to ‘most areas where we set minimum standards for protection reporting channels to ensure whistleblowers are better protected’ to ‘protect them from retaliation’. The Commission focused on financial irregularities among EU institutions and States: it estimated an annual loss of potential benefits to the Union of €5.8 to €9.6 billion, in the public procurement sector alone, arising from lack of specific protection in law for whistleblowers. The Commission gave two examples of the types of reports which the newly conceived directive might aid a whistleblower to disclose: fraud or tax evasion according to EU law.

Neither, plainly, would have aided Assange. The Commission’s office and its representatives were deliberate in choosing not to say a word about how the directive might have a bearing on Assange himself or his methods of reporting. At a press conference in the same week, the same spokesperson of the Commission, Christian Wigand, replied, when asked if the Commission viewed Assange as a whistleblower, ‘No comment on individual legal proceedings. This is a matter for the relevant judicial authorities.’ Mr Wigand’s reply is spot on: it recognises the constitutional significance of the courts and the reality of what is now the stage of legal proceedings in Assange.

Continuing discussions

More Brussels discussions on the topic of Assange were tabled in June for later this year. The Vice-President of the European Commission, Frans Timmermans, has been petitioned personally by several European Parliamentarians to involve himself in those discussions. He would be wise to decline.

Assange mesmerises much of the media so that it fails to scrutinise what truly are the issues. It is too simplistic to say that what Assange does is legitimate journalism. That leaky ship has sailed.

Abigail Bright, a.bright@doughtystreet.co.uk, practises at Doughty Street Chambers.

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Abigail Bright

Abigail, Doughty Street Chambers, specialises in extradition. She was recently led in a successful challenge to a Moldovan request, discharge having been ordered pursuant to the Article 3 challenge alone. The Court relied on two final judgments on Article 3 of the European Court of Human Rights against Moldova. Moldova declined to exercise its automatic right of appeal against the ruling.