Assange and the Myth of Due Process

Edited by: Tim Zubizarreta

JURIST Guest Columnists Greg Barns, an Australian Lawyer and Adviser to the Australian Assange Campaign, and Lisanne Adam, a legal academic and Consultant in EU Human Rights, discuss how despite modern nations’ commitment to due process, Julian Assange is being denied due process at every turn…

In the case of the digital Robin Hood, Assange informed voices such as the United Nations special rapporteur on torture Nils Melzer and Bloomberg columnist Leonid Bershidsky argue that the likelihood that his case is considered by an impartial and unbiased judiciary and jury, is minimal or nil.

More specifically a premise of due process Audi Alteram Partem, is not guaranteed in the case of Assange. Audi Alteram Partem is a universally accepted due process guarantee that protects an individual against unfair governmental practices in the sense that it provides equal arms during criminal proceedings. In Brady v. Maryland, this right was emphasised to be about fundamentally protecting individuals from prosecutorial misconduct in withholding evidence. Equality of arms is an elemental safeguard against arbitrary treatment and an integral part of the scheme in it that it prescribes a range of minimum standards protecting parties’ equality.

But in Assange’s case earlier this year, US prosecutors obtained Assange’s legal defence strategy, medical records and other personal belongings from the Ecuadorian Embassy. This was an unlawful confiscation, a clear case of prosecutorial misconduct, that has been left unscrutinised by the UK judiciary through its allowing for the extradition proceedings to commence without further delay.

In the same vein, equality of arms also underpins the right to engage counsel and prepare a defence. The right to effective legal representation is undeniably a constituent of fundamental fairness. This right necessitates effective access to counsel and documents needed to prepare a defence effectively. Restriction of these rights enhance a disturbing departure from due process in it that it creates inequality of parties in proceedings.

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