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Assange Intervention

Assange Intervention

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Published by swedenversusassange
Independent written Interventions for the Appellant's case in Assange Supreme Court Appeal, from Gerard Batten, MEP, and Vladimir Bukovsky
Independent written Interventions for the Appellant's case in Assange Supreme Court Appeal, from Gerard Batten, MEP, and Vladimir Bukovsky

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Published by: swedenversusassange on Feb 08, 2012
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10/02/2013

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IN THE SUPREME COURTUKSC 2011/0264BETWEEN:Julian Paul AssangeAppellant- v – Swedish Prosecution AuthorityRespondent
 _______________________________ Application for a leave to intervene _______________________________ (Rule 26 of the Supreme Court Rules 2009)Interveners
1.Both proposed interveners take substantively the same view of the European ArrestWarrant and how the law may be re-formulated in this appeal. A joint interventiontherefore seems expedient.
2.
As a Member of European Parliament for London since 2004, and a member of itsCivil Liberties, Justice and Home Affairs Committee since 2009,
Gerard Batten
hastaken a great interest in the EAW system. Over the past seven years, he madenumerous parliamentary speeches and written questions on the matter, and wasinvolved in public campaigns over controversial EAW cases, especially those of hisconstituents Andrew Symeou and Miguel-Angel Meizoso-Gonzalez. He made adetailed written submission for the recent extradition review by Sir Scott Baker’s panel.
3.
Vladimir Bukovsky
was one of the founders of the human rights movement in theSoviet Union in 1960s and 1970s and one of the most prominent Soviet political prisoners for 12 years. He was released from prison and famously exchanged for aChilean communist leader in 1976, and lives in the UK since 1978. He was a keyexpert witness in the landmark Constitutional Court case in Russia
Communist Partyv President Yeltsin
(1992), where the communist rule was condemned asunconstitutional and incompatible with the rule of law. In his more recent books and
1
 
articles, he argues that the European Union is in danger of developing into a newSoviet Union, and singles out the European Arrest Warrant as a particular threat tohuman rights.
Proposed submission
Introduction
4.
This case comes before Your Lordships’ House on a certified point of law whichmight appear a narrow and procedural issue; but to answer it, you will have to revisitthe very fundamentals of the Constitution.
5.
The Appellant’s case is supported by the clear language of the statute, the underlyinglegislative intention, the language of the EU Council Framework Decision, Strasbourgcase-law and – last not least – the basic principles of what is known in common lawas
natural justice
. The High Court Judgement recognises in para 41 that ‘
a commonlaw judge
’ certainly ‘
would not consider a prosecutor as having a judicial position or acting as a judicial authority
’. Indeed, the English common law has always drawn aclear line between the prosecutor and anything that may be called a judicial authority;this is the very core of our adversarial system of criminal law. The principle that
nobody can be a judge in his own case
has been considered so fundamental that,extraordinarily, even an express provision of a statute could not overturn it. Thus,Hobart CJ held in
 Day v Savadge
(1614) Hob 85; 80 ER 235: “
 Even an Act of  Parliament, made without natural equity, as to make a man judge in his own case, isvoid in itself, for 
 jura naturae sunt immutabilia
 , and they are
leges legum.” The same principle had been famously applied by Lord Coke CJ in
 Dr Bonham’s Case
(1610) 8Co Rep 114a.
6.
One would need a truly formidable authority to defeat this, and the High Court judgement finds it in a fundamental objective of the European Union, enshrined inArticle 2 of the EU Treaty: to make the EU a common ‘
area of freedom, security and  justice
’. The purpose of the Framework Decision is to contribute towards thisobjective, which would be much more difficult to attain if we fail to recognise that insome of the European legal systems prosecutors are regarded as
 judicial authorities
alongside judges.
2
 
7.
In effect, the High Court has ruled that this
 political 
purpose of the Framework Decision trumps the ordinary meaning of the words in the express provisions of thesame Framework Decision and in the British statute. This approach may or may not be in line with the earlier decisions of lower courts. If it is, the Interveners submit thatthis state of law is unsatisfactory and not in line with basic constitutional principlesgoverning the relations between domestic and EU law.
PART 1. Unsatisfactory state of the law at present
The position in EU law
8.
Article 34(2)(b) of the EU Treaty provides:
 Framework decisions shall be binding upon the Member States as to the result to beachieved but shall leave to the national authorities the choice of form and methods.They shall not entail direct effect.
9.
Thus a Framework Decision
 per se
is not a source of law. Like an international treaty,it merely imposes an
international 
obligation on the UK government to modify thedomestic law to achieve certain results. The government discharges this obligation byenacting a statute (in this case, Part 1 of the Extradition Act 2003), and it is thestatute, not the Framework Decision, that the courts in this country have to apply.
10.
However, the European Court of Justice held in
Criminal Proceedings against Pupino
(2005):
When applying national law, the national court that is called upon to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with Article34(2) (b) EU.
11.
Unfortunately, there is a degree of ambiguity in this ruling, which has had veryserious consequences in the present case and many others. What are the respectivemeanings of ‘
result to be achieved 
’ in Art. 34(2) EU,
‘ 
wording and purpose of the framework decision
’ 
in
Pupino,
and
‘ 
result which it pursues
’ 
? Does ‘
result 
’ meaneffective enactment of the specific provisions of the Framework Decision (e. g. thatEAWs, defined in Art. 1 as ‘judicial decisionsshould be issued by ‘judicialauthorities’ as per Art. 6) or does it refer to the broader policy objectives which the
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