By Justice Rohini Marasinghe, Judge of the Court of Appeal
When a report of a crime is made, the police are required to request the appointment of ‘judge de instruction” or the “examining judge” under whose guidance and under whose watchful eye, the Police enquiries into the crime are conducted. This requirement that Police enquiries are conducted under the direction of a judge constituting an impartial body ensures that the Police enquiries are conducted according to the procedural Law of the land. This prevents the hiding of exculpatory evidence which may point to the innocence of the suspect person. Both evidence incriminatory and exculpatory are produced and are compiled into what is referred to as a “Dossier “. It is when that document is completed that the “examining Judge” makes the determination whether there is a suspect to be charged, and what offence should he be charged with. The “Dossier”, euphemistically saying, “presides over the trial”, and its contents, may be challenged by a Counsel as the trial proceeds. There are some ill effects in this process but the important issue is that the decision to charge a person and what the nature of those charges would be, are made by an independent body - the “examining judge” - upon evidence gathered by the executive agencies of the State, the Police would act under the guidance and supervision of an impartial judge. Until that stage is reached there is no single person who may be characterized as an accused and therefore a fugitive.
In Assange’s case that stage is several stages away and until that stage is reached he is not a “fugitive from Justice” but is a person required to be questioned by an “examining judge”. In the present situation a meeting for that purpose could be held in London, at the Ecuadorian Embassy. In fact “Instructing judges” from European jurisdictions have travelled to other countries to interview those who are key witnesses to a crime. The Chief Magistrate from Madrid came to London to question Pinochet after which he filed for Pinochet’s extradition to Spain to stand trial.
Unless there is some other motive to get Assange to Sweden, an instructing judge could very easily have gone to London to prepare the “Dossier ". That is my first conclusion.
My second conclusion is that now that Assange is in the protection of the Ecuadorean Government, the Interpol warrant should now be directed at the Ecuadorean government for the same reasons that justified the issue of the Interpol warrant to the U.K. Government. Interpol has the power to change the direction of its warrant towards the State in which the person for whose arrest is found. Under diplomatic law Assange is presently found on Ecuadorian territory and not upon U.K. Territory. Therefore the State to which the warrant is issued, at the present time, is not the State in which Assange is found but at a State that needs to “Invade” (forcibly Enter) a State in which Assange is found. Why therefore is the Interpol not requested to change the State to which the request of arrest is directed from the U.K. to Ecuador?
My third conclusion is that the case raises important points of International Law and they need to be considered by the International Law Commission at a future date. The commission has not made a decision on” Diplomatic Asylum” and the Vienna Convention has no provision referring to it. The provision of Asylum to Julian Assange, by the Government of Ecuador does not bring him within the protection of the Vienna Convention. What Assange may seek is the protection to which the State of Ecuador is entitled to under the Vienna Convention to give him, but not by way of “Diplomatic Asylum”. The latter under Diplomatic Law is very different from “Asylum” which the Government of Ecuador has given Assange.
The General Assembly Resolution 685 (VIII) which provided the mandate for the Commission to consider “diplomatic privileges and immunities”, expressly excluded any consideration of “diplomatic asylum”. It was considered a complex matter to be left for another day. (This is the last of the series of articles on Julian Assange by Justice Marasinghe)