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Three members of U.N. panel said Assange was ‘arbitrarily detained.’ One didn’t. Here’s his dissent.

WikiLeaks founder Julian Assange is seen on a screen as he addresses the media from the London embassy of Ecuador, where he has beenfor some 3½ years to avoid extradition to Sweden for questioning about alleged sexual offenses.  (AP Photo/Frank Augstein)
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A U.N. panel has declared that Julian Assange, the WikiLeaks founder who has remained confined within the Ecuadoran Embassy in London since 2012, is being “arbitrarily detained.”

The decision from the U.N. Working Group on Arbitrary Detention is not legally binding, though it carries significant weight. Some figures have expressed anger, even disbelief, that the panel would reach the decision on Assange, who faces a European arrest warrant if he leaves the diplomatic refuge of the embassy. If Assange were arrested, he would be extradited to Sweden, where he faces questioning on allegations that include rape. He denies all charges.

Assange called the announcement a "significant" victory and called on British authorities to renounce their plans to arrest him if he leaves the embassy.

The panel's decision wasn't unanimous, however. Of the five members of the panel, three felt that Assange was being arbitrarily detained – Sètondji Adjovi of Benin, José Guevara of Mexico and Seong-Phil Hong of South Korea.

Leigh Toomey, an Australian expert on the panel, did not participate in the decision because she is of the same nationality as Assange.

More notably, Vladimir Tochilovsky, a Ukrainian expert on the panel who has worked at the International Criminal Court, offered a dissenting viewpoint – arguing that Assange could not have been arbitrarily detained because he was using the embassy as a "a safe haven to evade arrest." While there may be human rights issues at stake in the case, Tochilovsky wrote in his dissent, it was outside the realms of what should be discussed by a panel that dealt with arbitrary detentions.

Among British legal experts (many of whom have a low opinion of Assange's decision to take refuge in the embassy), Tochilovsky's dissent is being held up as the voice of reason. Joshua Rozenberg, a British legal commentator, wrote that the dissent is "so self-evidently true that it seems hard to believe the majority could have been persuaded otherwise." Carl Gardner, a former government lawyer who blogs on legal issues, wrote that Tochilovsky's argument is "hard to argue with" and that the majority decision of the panel is "ridiculous."

"The dissenting opinion of Tochilovsky on 'arbitrary detention' can be fairly summarised as 'UN Panel, WTF?'" David Allen Green, a commentator on law and policy at the Financial Times, wrote on Twitter.

You can download the full report on the final opinion of the U.N. panel at this link. Tochilovsky's entire dissent is below:

Vladimir Tochilovsky
  1. The adopted Opinion raises serious question as to the scope of the mandate of the Working Group.

  2. It is assumed in the Opinion that Mr. Assange has been detained in the Embassy of Ecuador in London by the authorities of the United Kingdom. In particular, it is stated that his stay in the Embassy constitutes “a state of an arbitrary deprivation of liberty.”

  3. In fact, Mr. Assange fled the bail in June 2012 and since then stays at the premises of the Embassy using them as a safe haven to evade arrest. Indeed, fugitives are often self-confined within the places where they evade arrest and detention. This could be some premises, as in Mr. Assange’s situation, or the territory of the State that does not recognise the arrest warrant. However, these territories and premises of self-confinement cannot be considered as places of detention for the purposes of the mandate of the Working Group.

  4. In regard to the house arrest of Mr. Assange in 2011-2012, it was previously emphasised by the Working Group that where the person is allowed to leave the residence (as in Mr. Assange’s case), it is “a form of restriction of liberty rather than deprivation of liberty, measure which would then lie outside the Group’s competence” (E/CN.4/1998/44, para. 41(e)). Mr. Assange was allowed to leave the mansion where he was supposed to reside while litigating against extradition in the courts of the United Kingdom. As soon as his last application was dismissed by the Supreme Court in June 2012, Mr. Assange fled the bail.

  5. The mandate of the Working Group is not without limits. By definition, the Working Group is not competent to consider situations that do not involve deprivation of liberty. For the same reason, issues related to the fugitives’ self-confinement, such as asylum and extradition, do not fall into the mandate of the Working Group (see, for instance, E/CN.4/1999/63, para. 67).

  6. That is not to say that the complaints of Mr. Assange could not have been considered. There exist the appropriate UN human rights treaty bodies and the European Court of Human Rights that do have mandate to examine such complaints regardless whether they involve deprivation of liberty or not.

  7. Incidentally, any further application of Mr. Assange may now be declared inadmissible in an appropriate UN body or ECtHR on the matters that have been considered by the Working Group. In this regard, one may refer to the ECtHR decision in Peraldi v. France (2096/05) and the reservation of Sweden to the First Optional Protocol to the ICCPR.

  8. For these reasons, I dissent.

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