On 6th February 2020 Greg Barns is a barrister and Adviser to the Australian Assange Campaign. Lisanne Adam is a Netherlands trained lawyer and an adviser on EU Law write
Julian Assange’s fight against extradition to the United States from the UK highlights breaches of his rights under European human rights law. The European Court of Human Rights (ECtHR) is likely to take a very dim view of the United States’ conduct because to allow extradition would breach a number of Mr Assange’s human rights. But it is a long road to the EctHR.
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Effective participation in proceedings
The right to a fair trial has been enshrined in the ECHR and has been strongly supported by the ECtHR. This right protects individuals against arbitrary government and prescribes fair procedures. Relevant to Assange are a few specific protections.
The equality of parties to proceedings is imbalanced. Equality of arms is a right encompassing the protection of many elements in proceedings. Relevant to Assange’s case is access to the right to counsel, documents needed to effectively prepare his defence and fitness to stand trial. The importance of these rights has been recognised in Strasbourg. The right to be effectively defended by counsel is one of the fundamental features of a fair trial. The ECtHR has firmly protected the right to counsel on numerous occasions and argued that access to counsel is of critical importance for an individual to effectively defend him or herself. Despite this, Assange’s access to liaise with counsel has been restricted, demonstrating a clear violation of the ECHR. In the same vein, Assange has been denied access to relevant documentation underpinning the charges against him. The ECtHR has scrutinised prosecutorial conduct involving withholding material from defence stressing that an accused must be provided with an opportunity to have knowledge of and comment on evidence adduced by the prosecutor. Lastly, the importance of competence to undergo legal proceedings is a right implicit in the very notion of an adversarial procedure.
The ECtHR has confirmed several cumulative conditions that governments and the courts are required to protect. . One of these conditions is to ensure the defendant is in a position of sound decision making – that is, to make well-informed choices when defending oneself against criminal charges. Fitness to undergo legal proceedings is assessed on the ability to understand the situation and subsequently effectively instruct counsel based on rational decisions. Due to his prolonged exposure to psychological torture, Assange’s mental and physical health is rapidly deteriorating. This affects his sound decision making and therefore, violates his right to a fair trial.
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Although the circumstances outlined above indicate Assange has a strong case, it can take years before the ECtHR could consider his case and ensure justice. Other cases involving extradition requests to the UK have demonstrated that these lengthy proceedings can take up to 15 years.
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Read Full article in John Menadue – Pearls and Irritations