di STEFANIA MAURIZI

Julian Assange, the only western publisher arbitrarily detained in the heart of Europe, has remained confined in London. Referring to his condition as “arbitrary detention” is neither an exaggeration nor an opinion, it is the ruling of the United Nations Working Group (Unwgad) which establishes who is arbitrarily detained and whose conclusions are considered authoritati ... For almost eight years now, his case has continued to fuel debate among supporters and critics. For almost eight years now,, the only western publisher arbitrarily detained in the heart of Europe, has remained confined in London. Referring to his condition as “arbitrary detention” is neither an exaggeration nor an opinion, it is the ruling of the United Nations Working Group (Unwgad) which establishes who is arbitrarily detained and whose conclusions are considered authoritati ...

For almost eight years now, his case has continued to fuel debate among supporters and critics. For almost eight years now, Julian Assange, the only western publisher arbitrarily detained in the heart of Europe, has remained confined in London. Referring to his condition as “arbitrary detention” is neither an exaggeration nor an opinion, it is the ruling of the United Nations Working Group (Unwgad) which establishes who is arbitrarily detained and whose conclusions are considered authoritative by the European Court of Human Rights. Something went wrong with the Assange case, but what exactly?



And who made mistakes? Starting from these questions, Repubblica has tried through a comprehensive Freedom of Information Act request to reconstruct his case by acquiring solid, factual information: the official correspondence between the British and the Swedish authorities in charge of his case. Today some of these documents which we obtained under Foia have proved central in the hearing before the Westminster Magistrates' Court in London, where today a British judge has upheld an arrest warrant for Assange. It is bizarre that before our request no media had ever tried to access the full set of files, even though WikiLeaks and his founder have been at the center of thousands of media reports by the international press for almost a decade.



• INTERNATIONAL INTRIGUE

The Assange case is indeed a very complex one. It involves five jurisdictions: Australia, where the founder of WikiLeaks was born; Sweden, where in August 2010 he ended up in a rape investigation dismissed the 19th of May 2017; the United Kingdom, where he has been since December 2010, when WikiLeaks published hundreds of thousands of secret US government documents; the United States, which has always reacted with fury to WikiLeaks' revelations and finally Ecuador, which gave Assange political asylum after he took refuge in the Ecuadorian Embassy in Knightsbridge, London, where he has remained confined since the 19th of June 2012.



Two agencies have played a key role in the case: the Swedish Prosecution Authority (SPA) in Stockholm, which investigated rape allegations, and the Crown Prosecution Service (CPS) in London, which provided judicial assistance to the Swedish prosecutors, since Assange was under investigation in Sweden but has been in London since 2010.



It is against these two agencies that we have fought in court in London and in Stockholm to get access to the documents, since in the case of Sweden two years of attempts had produced only very limited access to the files, and complete rejection by the London authorities. Thanks to our litigation, which is still ongoing, we have obtained only 519 pages from the SPA and 439 pages from the CPS, indeed the tip of the iceberg considering that the CPS estimated that the full Assange file contains between 7,200 and 9,600 pages.



However, some of the documents released to us under Foia are so significant that they were at the center of the hearing held today before the Westminster Magistrates' Court to establish the proportionality of the decision to maintain a UK arrest warrant against Assange for violating bail conditions in 2012, when he took refuge in the Ecuadorian embassy.



The few documents we have obtained so far reveal not only the zealous efforts of the British authorities to prosecute Assange, but also their role in creating the judicial-diplomatic quagmire that has trapped Julian Assange since 2010.



• THE ROLE OF THE CROWN PROSECUTION SERVICE

It was the Crown Prosecution Service that advised the Swedish magistrates against the only legal strategy that could have led to a quick solution of the case: questioning the founder of WikiLeaks in London, instead of trying to extradite him to Sweden simply to question him on rape allegations.



Documents confirm that since 2010 Assange had not opposed the request for questioning and he and his lawyers had tried to propose various options to avoid the risk of extradition to Sweden, which he feared could expose him to the risk of extradition to the US and prosecution for WikiLeaks publications.



But the CPS lawyer, Mr. Paul Close, advised against this solution from the very beginning: “My earlier advice remains, that in my view it would not be prudent for the Swedish authorities to try to interview the defendant in the UK”, Close wrote to the Swedish prosecutors the 25th of January 2011, adding that “Any attempt to interview him under strict Swedish law would invariably be fraught with problems”. He therefore concludes: “Thus I suggest you interview him only on his surrender to Sweden and in accordance with Swedish law”.



For more than seven years now, Assange has remained in London, first under house arrest for a year and a half, trying by all legal means to challenge the European arrest warrant issued by Sweden . When he had exhausted all legal options to avoid extradition to Sweden, he took refuge in the Ecuadorian embassy, where he is still in a state of arbitrary detention today, for which Sweden and the UK are responsible, according to the UN decision.



It was only after the Stockholm Court of Appeal (Svea Hovrätt) criticized the lack of progress in the investigation - which remained in the preliminary phase from August 2010 to May 2017 - and only after the UN decision that the Swedish prosecutors questioned him in London, in November 2016, and finally decided to dismiss their investigation the 19th of May 2017. "Although he made himself unavailable for surrender (to the Swedish authorities who wanted to extradite him), Mr Assange nonetheless remained at all times willing and available to be interviewed to progress the Swedish investigation” his lawyers, Gareth Peirce and Mark Summers argue in their notes, representing him before the Westminster Magistrates' Court. Assange’s lawyers add: "The reason that the requisite interview interrogation did not occur until late 2016 was, it transpires, on the advice of the CPS. Once the interview did occur, the proceedings were swiftly discontinued».



• A SPECIAL CASE?

Much of the information that emerged from our Foia has become part of the legal case. For example, the e-mail message in which the lawyer Paul Close suggests that the Assange case seems quite unique: “Please do not think that the case is being dealt with as just another extradition request”, he writes the 13th of January 2011.Unfortunately, documents released to us so far do not allow to understand what makes the case special.



Emails do not indicate the slightest concern on the part of the British authorities about the impact of prolonged reclusion on the health of Julian Assange and the proportionality of this reclusion.



“I heard the BBC World service radio report earlier this morning about his health”, the CPS writes the 29th of November 2012, adding “There is no question of him being allowed out of the Ecuadorian embassy, treated and then allowed to go back. He would be arrested as soon as was appropriate. His concerns seem to stem from living in a confined space [surely just good practice], having very little daylight in London and needing lots of good fresh air (again useful practice for going to the healthiest country in the world).



As for the weight loss, there are many people of my acquaintance [obviously just women] who would always welcome this. I believe his most serious condition remains the enduring damage to his ego, now that of course is a very serious male medical condition”. Thus did the Crown Prosecution Service dismiss the prolonged confinement of Julian Assange.



Even the Swedish prosecutors seemed to show doubts at some point about the legal strategy of insisting on extradition to Sweden at all costs. In October 2013, the Swedish prosecutor Marianne Ny writes: “There is a demand in Swedish law for coercive measures to be proportionate. The time passing, the costs and how severe the crime is to be taken into account together with the intrusion or detriment to the suspect. Against this background we have found us to be obliged to consider to lift the detention order (court order) and to withdraw the European arrest warrant». It took four years to end the Swedish investigation after this email, however.



The results are crystal clear: from 2010 to 2017, the investigation remained in its preliminary stage and was ultimately dropped. From June 2012 to June 2015 alone, Scotland Yard spent 11,1 million pounds of the British taxpayers to keep the Ecuadorian embassy under surveillance 24 hours a day. While Julian Assange, who even if he had ever been indicted in Sweden would have risked a maximum penalty of eighteen months - as publicly declared by Marianne Ny – has spent five and a half years confined in a building, without even one hour outdoors per day. For the first time in its history, Sweden was found by the UN to be detaining an individual arbitrarily, while England tried to avoid this embarrassing decision by appealing against it, but lost. Since then, British authorities have simply ignored the UN decision.



• FEW DOCUMENTS, THOUSANDS OF QUESTIONS

What went wrong with the Assange case and who made mistakes? It is impossible to answer these questions without full access to the documents, which we continue to pursue because we need answers to many questions. For example, why did the Crown Prosecution Service destroy the emails of Mr. Paul Close, who assisted the Swedish prosecutors from the very beginning? The London First-tier Tribunal, chaired by judge Andrew Bartlett QC, which rejected our appeal for accessing the documents last December, writes in its verdict: "We conclude that there was nothing untoward in the deletion of the email account". Did the judge order an inspection? If not, how did he decide that no document was improperly destroyed, considering that not even the CPS appears to know what they destroyed exactly?



How is it possible that hundreds of emails do not contain a single mention of Assange's concerns about extradition to the US, considering that when the Swedish case exploded WikiLeaks had just started publishing explosive documents like the Afghan and Iraq War Logs? Emails show that the English and Swedish authorities discussed all sorts of things: weekends, free time, the magic of snowing in Sweden.



Is it credible that they never ever discussed the legitimate concerns of the founder of WikiLeaks of being extradited to the US and prosecuted for the publication of the secret US files? And if the British authorities never had any contact with the US on any extradition request, why not to state this clearly, like the Swedish did? Finally, if there is a secret US arrest warrant due to the WikiLeaks publications, is the Crown Prosecution Service determined to assist the United States to extradite Assange and the WikiLeaks' staff, just as it did Sweden, despite the First-tier Tribunal recognizing WikiLeaks as a media organization in its verdict on our Foia appeal?



After the London Tribunal rejected our appeal, we asked for permission to appeal to the Upper Tribunal. Estelle Dehon, a London lawyer at Cornerstone Barristers who is representing us together with the lawyer Jennifer Robinson of Doughty Street Chambers, tells la Repubblica "Courts in the U.K. and Europe have recognized that the press and other media have a special place in a democratic society as transmitters of information and as a public watchdog. Freedom of information laws play a crucial role in supporting that role. It is encouraging that the FOIA process has resulted in a number of e-mails concerning the Assange case being disclosed. The Tribunal recognized the strong public interest in this disclosure. But more could and should be disclosed, which is why permission to appeal has been sought."



Jennifer Robinson agrees that the emails obtained from our Foia litigation have "become central to this case" and "this demonstrates the important role played by journalists using Freedom of Information to learn the truth and hold public authorities accountable for their actions”. Robinson stresses that thanks to these efforts, “we now better understand how and why Mr. Assange's case has dragged on and the role the CPS played in placing the U.K. in breach of its international obligations”.