Jun 13, 2012

Assange rolls the dice again on legal challenge

Julian Assange's lawyers has sought to reopen his appeal with a small but critical technicality about how judges interpreted his case.

Bernard Keane — Politics editor

Bernard Keane

Politics editor

Julian Assange's legal team has lodged its application for the overturning of the UK Supreme Court's decision to reject his appeal against extradition, arguing a key point it claims could reverse the decisions of two of the majority judges in the case, which would deliver a win to Assange. Immediately upon delivery of the verdict two weeks ago, Assange's legal team, headed by barrister Dinah Rose and solicitor Gareth Peirce, requested leave to apply for a reconsideration of the verdict on the basis that a key issue in the judges' consideration, the applicability of the Vienna Convention on the Law of Treaties, hadn't been argued before the court. In Assange's application, submitted overnight, his lawyers argue that the Vienna Convention issue was determinative in the judgment of Lord Dyson and played an important role in Lord Brown's decision. Both judges were in the 5-2 majority, and a reconsideration might potentially alter the decision in Assange's favour. The Vienna Convention issue hinges on Article 31(3)(b), on which basis the majority judges interpreted the crucial term "judicial authority" (Assange had argued a prosecutor, such as the Swedish prosecutor seeking his extradition, did not fulfil the criteria of "judicial authority") based on subsequent practice. Some EU member states have since nominated prosecutors as "judicial authorities". The Assange argument is that the Vienna Convention is not applicable to an EU decision, because such a decision isn't a treaty between states. It makes a potentially key point that the European Court of Justice distinguishes between internal EU decisions and treaties, and interprets each according to different principles
"... not only does Article 31(3)(b) of the VCLT not apply to the internal Community legal order, but neither does the principle of customary international law that is expressed in that sub-article. As far as Community law is concerned, and certainly where the provisions of the EC Treaty are concerned, the ECJ does not accept arguments of subsequent practice at all."
It also argues the Vienna Convention only applies to states, rather than a supranational body such as the EU, that some EU states haven't ratified the convention. It then goes on to argue that in any event, regardless of applicability generally, Article 31(3)(b) of the convention can't apply in the Assange case because the test of "subsequent practice" isn't met: not all states have shown their agreement through subsequent practice (a point made by dissenting judge Lady Hale), and the UK Parliament has specifically indicated its own, differing, "subsequent practice" by stating that "judicial authority" is confined to courts and judges.
"The Appellant will therefore submit that Lady Hale’s analysis is correct. The meaning of the FD is unclear and cannot be ascertained from subsequent State practice. Moreover, the ECJ would not have regard to subsequent State practice under Article 31(3)(b) of the VCLT or customary international law in construing the FD (and both the majority and Lord Mance are wrong to assume otherwise). There is thus no clear answer to Lord Phillips’ 'critical question' of the proper interpretation of the term 'judicial authority' under the FD. As Lady Hale and Lord Mance both held, the Court should in these circumstances determine the meaning of the 2003 Act by ascertaining and applying the intention of the United Kingdom legislature (whether with the assistance of Hansard or otherwise)."
The application also seeks a stay on the implementation of the EAW on Assange and a further eight-week period for reconsideration in detail of the Article 31(3)(b) issue and a day of oral hearings. The Supreme Court's initial decision will be whether to allow the application, and then the process for further hearings and submissions if it does so.

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4 thoughts on “Assange rolls the dice again on legal challenge

  1. shepherdmarilyn

    The thing about this is the poor bastard has been under house arrest and in prison off and on for almost 2 years without ever being wanted for any crime.

    The Swedes could talk to him anywhere, after all
    Assange is running an entire TV program on air.

  2. banistersmind

    That he would continue to fight on (as of course, he should) says more to me about his team’s legitimate fears about the U.S. desire to get their hands on him via Sweden than anything. It’s 2 years people – America can’t hide from the truth he has revealed. They’ve been caught with their pants down. Pull them back up and leave him alone.

  3. AR

    The Hegemon has always been the dinosaur in the court room – a small consolation is that something so big needs a big brain to function properly and this is demonstrably diminishing in the Benighted States. This devolution is too slow to save Assange but it is dead but too dumb to stop moving.
    Not that sweetness & light will break out when it finally hits to dirt, there are too many little critters eager for their time to strut the world stage.

  4. Tom

    I don’t much like Mr Assange but don’t have a problem with what he did in the context of Wiki. I also however think that the suggestion the Swedes trumped up charges against him in cahoots with the US Government so he’d be extradited from the UK and transited through Sweden on the way to Gitmo, is the stuff of conspiracy theorists and other nutters.
    Let him face the music for what he is alleged to have done in Sweden and if he does end up in the US after that, see that for what it is (more eveidence that the US security people are totally out of any notion of control) and deal with it accordingly. Like Hicks, in IMHO, just because he’s Australian certainly does not mean he’s to be automatically assumed to be a victim of injustice and deserving of any special treatment. If as I suspect ‘it’s all about me’ and has established himself as a ’cause celeb’ he’ll write his book, make his money and will have achieved what he really wanted, his 15 mins of fame.

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