The Top Six Legal Myths about Julian Assange

BRONWEN EWENS
Volume 2, Issue 6 (Originally Published 27 August 2012)
 
1. The allegations of rape would not be rape under English law.
The Assange legal team argued this twice before English courts, and twice the English courts ruled clearly that the allegation would also constitute rape under English law.
 
2. ‘But he hasn’t been charged! He is only wanted for questioning...’
Whereas a suspect is charged early on in common law jurisdictions, it is a final step in Sweden before trial, following a second and final interview with the suspect. Since charging occurs shortly before trial in Sweden, this means that there is a prima facie case against him with sufficient evidence for a trail; to be held. This is why extradition is possible. If someone is simply wanted for questioning it would not be.
 
3. He will be extradited from Sweden / UK to the USA, where he will face the death penalty for espionage.
Under Article 3 of The European Convention on Human Rights, (‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’),both the UK and Sweden are prohibited from extraditing anyone who faces the death  penalty. The convention has been incorporated into Swedish law, which makes it directly applicable for all state agencies, courts and the Government. It is theoretically possible that the US might charge Assange for another (non-political) crime than espionage and that ii) the US would be willing to issue a guarantee that the death penalty will not be issued. Sweden could extradite Assange in such a case, provided that the UK also approves. But it is hard to imagine what kind of non-political crime that would be.
 
4. Then Sweden should guarantee that there will be no extradition to USA.
Under international law, all extradition requests have to be dealt with on their merits and in accordance with the applicable law. Accordingly, any final word on an extradition would come from an independent Swedish court, and not the government giving the purported 'guarantee'.
 
5. UK law has been unduly harsh on him.
Julian Assange repeatedly challenged the European Arrest Warrant in the United Kingdom. He lost at every stage, but each of his many legal arguments were heard and considered in extensive detail.
 
Assange had the assistance of first rate legal advice and advocacy from some of the UK's leading human rights lawyers, as well as the benefit of having been granted bail in England in the meantime. The extradition was fought by him all the way to the Supreme Court. Assange has been afforded more opportunities to challenge the warrant for his arrest than almost any other defendant in English legal history.
 
6.  UK authorities are likely to storm the Ecuadorian Embassy to capture him.
The British Diplomatic and Consular Premises Act of 1987 gives ministers a power to withdraw recognition from diplomatic premises. Ecuador could judicially review any proposed withdrawal, and the likely outcome would be long and expensive litigation rather than any kind of made-for-TV ‘storming’. The UK is currently in breach of its obligation to extradite Julian Assange to Sweden, just as Assange is in breach of his bail conditions. In seeking to facilitate the extradition of Assange, the UK government is trying to uphold the law and not break it.

​Bronwen Ewens