Prison conditions–Torturing Mr Assange–demand of immediate release–liability of the State, State agents and contractors

Niki Konstantinidis queries UK Government re prison conditions

20th February 2021: D Harding from HMPS replies on the subject of adequate clothing and accessories by journalists to Julian Assange


12th January 2021: N. Konstantinidis requests further clarification

Dear D Harding,

Further to my email below, I seek further information and wish to make the following points.

It is unclear how your claim regarding HMP Belmarsh being subject to independent scrutiny from Her Majesty’s Inspectorate of Prisons (HMIP) is in itself proof of HMPPS not infringing human rights of detainees or how it achieves positive outcomes for those detained and the public. Since 11 April 2019, how many regular independent inspections have been conducted on HMP Belmarsh and what data and analysis has been assembled in that respect? Where is such data held? How is it in the public interest for any prisoner, let alone an unconvicted prisoner like Mr Assange, to be tortured?

I agree that the primary role of a prison is to hold safely and securely in custody those persons remanded in custody (and other prisoners) but loss of liberty does not involve loss of non-derogable human rights such as the right to life or the right not to be tortured. As Mr Assange is an unconvicted prisoner, the information you provide on punishment and rehabilitation is totally irrelevant in this context. In any case, denying any prisoner access to the minimum diagnostic and therapeutic facilities outlined in the Coker Report (attached hereto for your information), denying him even his winter clothing as well as a heated environment (among other things), hardly fits the ordinary meaning of ‘the principles of equality and fairness, mirroring the expectations that we hold for our wider  society’. Despite your claims as to ‘existing, well-developed  procedures’, the Covid numbers communicated to the public, to date, demonstrate the opposite. The FOI response I received from NHS England confirms that the pandemic in HMP Belmarsh has been handled appallingly and if ‘prisoners (…) receive the  same healthcare and treatment as anyone outside of the prison’… the British population ought to be terrified.

As for the HMPPS Prisoner Complaints policy framework, in view of the evidence tendered in court during the extradition hearing and other facts in the public domain, it would not be unreasonable to say that a prisoner in HMP Belmarsh is just as likely to make a complaint as a prisoner would have been able to in Auschwitz; the reality of HMP Belmarsh consists of persistent torture such as the unjustified solitary confinement in the health wing following the video of Mr Assange in Belmarsh, exposure to Covid and other illnesses that would be fatal for him due to his poor health, refusal to allow him necessary clothing, refusal to allow him proper access to his lawyers etc. The public can never have confidence in a so-called ‘fair and effective system for dealing with prisoner complaints’, where torture has taken place systematically for almost two years with no staff reporting it, and where exports such as Richard Coker and UNSR Nils Melzer have been ignored.

In my view, the issue of Mr Assange’s prison conditions, where it has been proven in court, during the extradition proceedings, that systematic torture has destroyed his health to the point that his extradition was blocked, is a matter for the Secretary of State, as I stated in my earlier email.

I note the information you have given me that the Crown Prosecution Service, who act on behalf of the US, have not yet sought leave to appeal to the High Court.  

I am sorry that you consider the subject closed. Please forward my letter to your superiors.

Yours sincerely, 

11th January 2021: N. Konstantinidis requests clarification

Dear D Harding,

Thank you for your response. Sadly, I’ve read the same content on a number of previous occasions and it seems to be a copy/paste of a promotional brochure rather than a response to an FOIA request. There is no factual material in it. You may wish to invoke privacy principles to protect your administration, but the torture inflicted on Mr Assange is already public knowledge. Mr Assange is a vulnerable unconvicted detainee, discharged by DJ Baraitser from extradition on the basis of health issues (inter alia, lung condition and clinical depression) and the likelihood of him being tortured in a USA prison. She did not seem concerned about the fact that he has been and is being tortured in a UK covid-infested prison, trying to survive in freezing temperatures with his winter clothing still denied to him. This conduct by the relevant public authorities (including their agents or contractors) is grossly reckless and intentionally places Mr Assange’s life at risk.

Further, I wish to highlight the Belmarsh prison statistics that appear to be false and misleading (see attached documents).  As the Belmarsh prison statistics appear to be false and misleading (see attached documents) please provide a daily breakdown of covid-positive cases and all information how and when testing is performed as well as on what portion of the population.

DJ Baraitser specifically accepted the figure of 3 COVID cases in Belmarsh given officially by the prison authorities. Bail was refused.

Given the information provided to journalist John McEvoy by the Ministry of Justice, showing 52 covid cases in Belmarsh prison as at 23 November 2020 (see attached screenshot of John McEvoy’s tweet dated 10 December 2020‘These are official figures given to me by the Ministry of Justice. The number of people testing positive for Covid-19 in Belmarsh prison, where Julian Assange is held, is spiralling out of control’), as well as information provided to me from the NHS and the LTHSPG (i.e., NHS refers to 81 Covid-19 positive cases for 2020 referring to the detainee population and the MoJ stated: ‘I can confirm that as of 30 November 2020, 68 prisoners had tested positive for Covid- 19 at HMP Belmarsh’), and evidence tendered by Mr Fitzgerald QC (i.e., 59 prisoners had tested positive in December 2020) how did Belmarsh produce evidence that there were only 3 positive tests for Covid in Belmarsh by the date of the bail application (email sent by the prison authorities at 10.49pm 5 January 2021)? 

In other words, if Belmarsh claims that within 43 days (or 1 month, 13 days) the number of people testing positive for Covid-19 in Belmarsh prison, went from 52, to 59 to 68 to 3how is that miraculous curve possible? How is it possible that DJ Baraitser finds Belmarsh prison safe for Mr Assange in light of theinformation provided by the MoJ (letter dated 6 January 2021, attached hereto) that HMP Belmarsh has recently been moved back to Stage 4, as have all prisons located in Tier 4 areas’?

Regarding NHS medical practitioners who failed in their legal and deontological duties to report human rights breaches (particularly in respect of Article 2 and 3 of the ECHR, as such are incorporated in the UK Human Rights Act), I will be contacting the BMA and the WMA (among others) seeking that all appropriate steps be taken against them. 

Also, given that the UK seems to be violating art 2 and 3 of the ECHR it is imperative to examine the liability of certain individuals for possible crimes against humanity.
Article 7 (1) (f) Crime against humanity of torture

1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.

2. Such person or persons were in the custody or under the control of the perpetrator.

3. Such pain or suffering did not arise only from, and was not inherent in or incidental to, lawful sanctions.

4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

It is understood that no specific purpose need be proved for this crime.

Article 7 (1) (k) Crime against humanity of other inhumane acts

1. The perpetrator inflicted great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act.

2. Such act was of a character similar to any other act referred to in article 7, paragraph 1, of the Statute. (It is understood that ‘character’ refers to the nature and gravity of the act.)

3. The perpetrator was aware of the factual circumstances that established the character of the act.

4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

The Rome Statute Explanatory Memorandum states that crimes against humanity are particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. An individual may be guilty of crimes against humanity even if he perpetrates one or two of the offences mentioned in the list of offences under the jurisdiction of the court, or engages in one such offence against only a few civilians, provided those offences are part of a consistent pattern of misbehaviour by a number of persons linked to that offender (for example, because they are parties to a common plan or for any similar reason). Consequently when one or more individuals are not accused of planning or carrying out a policy of inhumanity, but simply of perpetrating specific atrocities or vicious acts, in order to determine whether the necessary threshold is met one should use the following test: one ought to look at these atrocities or acts in their context and verify whether they may be regarded as part of an overall policy or a consistent pattern of an inhumanity, or whether they instead constitute isolated or sporadic acts of cruelty and wickedness.

The State has positive obligations with human rights such as the right to life and the prohibition of torture (see good guides on ECHR rights here:  The Secretary of State for Justice, Lord Buckland, has the duty imposed on his office of ensuring that the facilities of prison and the resources of prison are in accordance with Article 3 of the ECHR. The Court of Appeal reinforced that it is the Secretary of State, as a minister of the executive, who bears the duty of ensuring that prisoners are provided with the same level of access to medical treatment as available to the general public. If detention cannot occur without Article 3 being breached, then the Secretary of State should exercise his duties laid down in R (on the application of Spinks) v Secretary of State for the Home Department [2005] EWCA Civ 275 by releasing the prisoner if release is the only way the breach of Article 3 can be remedied. It is clear by now, that since 11 April 2019, Mr Assange has been ceaselessly tortured in Belmarsh prison. He must be released immediately. 

“Something wicked this way comes!” The mens rea of torture and attempted murder is crystallising before our eyes…  Mr Assange must be released immediately before the actus reus of murder is achieved. His life is in imminent danger.

Yours faithfully,