On June 19, 2012, the Australian national citizen Julian Assange, appeared at the premises of the Embassy of Ecuador in London, to request diplomatic protection of the Ecuadorian State to benefit from the existing rules on Diplomatic Asylum. The applicant has based its request on the fear that the eventual results might suffer political persecution in a third country, it could use his extradition to the Kingdom of Sweden to get to turn the subsequent extradition to that country.
The Government of Ecuador, faithful to the asylum procedure and attach the utmost seriousness in this case, has reviewed and evaluated all aspects involved in it, particularly the arguments presented by Mr. Assange to support the fear they feel about a situation that this person perceives as a threat to life, personal safety and freedom.
It is important to note that Mr. Assange has taken the decision to seek asylum and protection of Ecuador over allegations that it says, have been made by alleged “espionage and treason”, which exposes the citizen who inspires fear the possibility of being handed over to the United States of America by the British, Swedish or Australian, for he is a country, said Mr. Assange, chasing him because of the declassification of information embarrassing to the U.S. Government. Is also the applicant, that “a victim of persecution in various countries, which derives not only from their ideas and actions, but of their work to publish information which compromises the powerful, to publish the truth and, Therefore, exposing corruption and severe human rights abuses of citizens around the world. “
Therefore, for the applicant, the allocation of political offenses is the foundation of his asylum claim, because in his opinion, is faced with a situation involving an imminent danger for him who can not resist. In order to explain the fear he instills a possible political persecution, and that this possibility ends up becoming a situation of prejudice and violation of his rights, integrity and risk to personal safety and freedom, the Government of Ecuador considered the following:
Julian Assange is an award-winning communications professional internationally for his struggle for freedom of expression, press freedom and human rights in general;
That Mr. Assange shared with the global audience was privileged documentary information generated by various sources, and affected employees, countries and organizations;
That there is strong evidence of retaliation by the country or countries that produced the information disclosed by Mr. Assange, retaliation that may endanger their safety, integrity, and even his life;
That, despite diplomatic efforts by Ecuador, countries which have required adequate safeguards to protect the safety and life of Mr. Assange, have refused to facilitate them;
That is certain Ecuadorian authorities that it is possible the extradition of Mr. Assange to a third country outside the European Union without proper guarantees for their safety and personal integrity;
That legal evidence clearly shows that, given an extradition to the United States of America, Mr. Assange would not have a fair trial, could be tried by special courts or military, and it is unlikely that is applied to cruel and degrading , and was sentenced to life imprisonment or capital punishment, which would not respect their human rights;
That while Mr. Assange must answer for the investigation in Sweden, Ecuador is aware that the Swedish prosecutor has had a contradictory attitude that prevented Mr. Assange the full exercise of the legitimate right of defense;
Ecuador is convinced that they have undermined the procedural rights of Mr. Assange during the investigation;
Ecuador has found that Mr. Assange is without protection and assistance to be received from the State which is a citizen;
That, following several public statements and diplomatic communications by officials from Britain, Sweden and USA, it is inferred that these governments would not respect the conventions and treaties, and give priority to domestic law school hierarchy, in violation of rules express universal application and,
That, if Mr. Assange is reduced to custody in Sweden (as is customary in this country), would start a chain of events that would prevent the further protective measures taken to avoid possible extradition to a third country.
Thus, the Government of Ecuador considers that these arguments lend support to the fears of Julian Assange, while this may be a victim of political persecution, as a result of determined action in favor of freedom of expression and freedom of press and repudiation of his position to abuse that power tends to run in certain countries, issues that Mr. Assange suggest that, at any time, may be a situation likely to endanger life, safety or integrity staff. This fear has been ordered to exercise their human right to seek and receive asylum in the Embassy of Ecuador in the UK.
Article 41 of the Constitution of the Republic of Ecuador clearly defines the right of asylum. Under this provision, in Ecuador are fully recognized the rights of asylum and refugee status in accordance with the law and international human rights instruments. According to this constitutional provision:
“People who are in a situation of asylum and refugee shall enjoy special protection to ensure the full exercise of their rights. The State shall respect and ensure the principle of non-refoulement, as well as humanitarian assistance and emergency legal. “
Also, the right to asylum is enshrined in Article 4.7 of the Foreign Service Act of 2006, which determines the ability of the Ministry of Foreign Affairs, Trade and Integration of Ecuador to hear cases of diplomatic asylum, according to the laws, treaties, law and international practice.
It should be stressed that our country has been highlighted in recent years to accommodate a large number of people who have applied for territorial asylum or refugee status, having unconditionally respected the principle of non-refoulement and non-discrimination, while it has taken steps to provide refugee status in an expeditious manner, taking into account the circumstances of applicants, mostly Colombians fleeing the armed conflict in their country. The High Commissioner for Refugees has praised Ecuador’s refugee policy, and highlighted the significant fact that the country has not been confined to camps for these people, but have been integrated into society, full enjoyment of their human rights and guarantees.
Ecuador is located the right of asylum in the universal catalog of human rights and believes therefore that the effective implementation of this right requires international cooperation that our countries can be provided, without which the statement would be fruitless, and the institution would be totally ineffective. For these reasons, and recalling the obligation of all States have taken to help protect and promote human rights, as provided by the United Nations Charter, invited the British Government to provide its quota to achieve this purpose.
For this purpose, Ecuador has noted, during the analysis of legal institutions related to asylum, the conformation of this right fundamental principles involved general international law, the same as for its importance and scope have universal value, since kept consistent with the general interest of the entire international community, and have full recognition by all states. These principles, which are set forth in international instruments are as follows:
a) The Asylum, in all its forms is a fundamental human right creating obligations erga omnes, ie “for all” states.
b) The diplomatic asylum, the refuge (or territorial asylum), and the right not to be extradited, expelled, delivered or transferred, are human rights comparable, since they are based on the same principles of human protection: non-refoulement and non-discrimination without any adverse distinction based on race, color, sex, language, religion or belief, political or other opinion, national or social origin, property, birth or other status or any other similar criteria.
c) All these forms of protection are governed by the principles pro person (ie, more favorable to the individual), equality, universality, indivisibility, interrelatedness and interdependence.
d) The protection occurs when the State granting asylum, shelter or required, or the protecting power, consider that there is a risk or fear that the protected person may be a victim of political persecution, or is charged with political offenses.
e) The State granting asylum qualify the causes of asylum and extradition case, weigh the evidence.
f) No matter which of its forms or forms are present, the asylum is always the same cause and the same legal order, ie, political persecution, which causes it permissible, and safeguard the life, personal safety and freedom of the protected person, who is the lawful purpose.
g) The right of asylum is a fundamental human right, therefore, belongs to jus cogens, ie the system of mandatory rules of law recognized by the international community as a whole, which no derogation is permitted, being null all treaties and provisions of international law which they oppose.
h) In cases not covered by existing law, the human person remains under the protection of the principles of humanity and the dictates of public conscience, or are under the protection and empire of the principles of international law derived from established custom, principles of humanity and the dictates of public conscience.
i) The lack of international agreement or domestic legislation of States can not legitimately be invoked to limit, impair or deny the right to asylum.
j) The rules and principles governing the rights to asylum, no extradition, no delivery, no expulsion and transfer are not converging, to the extent necessary to enhance the protection and provide it with maximum efficiency. In this sense, are complementary international law of human rights, the right of asylum and refugee law and humanitarian law.
k) The rights of protection of the human person are based on ethical principles and values universally accepted and therefore have a humanistic, social, solidarity, welfare, peaceful and humanitarian.
l) All States have a duty to promote the progressive development of international human rights through effective national and international action.
Ecuador considers that the law governing the asylum case of Mr. Julian Assange comprises the entire set of principles, standards, mechanisms and procedures provided for in international human rights instruments (whether regional or universal), which include among their provisions the right to seek, receive and enjoy asylum for political reasons, the conventions governing the right of asylum and refugee law, and recognize the right not to be delivered, returned, or expelled when founded fear of persecution political conventions governing extradition law and recognize the right not to be extradited when this measure cover political persecution, and conventions governing humanitarian law, and recognize the right not to be transferred when there is a risk of persecution policy. All these forms of asylum and international protection are justified by the need to protect this person from a possible political persecution, or a possible allocation of political crimes and / or crimes related to the latter, which in the opinion of Ecuador, not only endanger Mr. Assange, but also pose a serious injustice committed against him.
It is undeniable that the States, to have assumed so numerous and substantive international instruments, many of them legally-binding obligation to provide protection or asylum to persons persecuted for political reasons, have expressed their desire to establish a legal institution to protect human rights and fundamental freedoms, based on a general practice accepted as law, which he attributes to such obligations as mandatory, erga omnes, being linked to the respect, protection and progressive development of human rights and fundamental freedoms, are part of jus cogens. Some of these instruments are mentioned below:
a) United Nations Charter of 1945, Purposes and Principles of the United Nations: the obligation of all members to cooperate in the promotion and protection of human rights;
b) Universal Declaration of Human Rights 1948: right to seek and enjoy asylum in any country, for political reasons (Article 14);
c) Declaration of the Rights and Duties of Man, 1948: right to seek and enjoy asylum for political reasons (Article 27);
d) Geneva Convention of August 12, 1949, relative to the Protection of Civilian Persons in Time of War: in no case be transferred to the protected person to a country where they fear persecution for his political views ( Article 45);
e) Convention on the Status of Refugees 1951 and Protocol of New York, 1967: prohibits returning or expelling refugees to countries where their lives and freedom would be threatened (Art. 33.1);
f) Convention on Diplomatic Asylum, 1954: The State has the right to grant asylum and classify the nature of the offense or the motives of persecution (Article 4);
g) Convention on Territorial Asylum of 1954: the State is entitled to admit to its territory such persons as it considers necessary (Article 1), when they are persecuted for their beliefs, political opinions or affiliation, or acts that may be considered political offenses ( Article 2), the State granting asylum may not return or expel a refugee who is persecuted for political reasons or offenses (Article 3) and confirmation of the extradition is not appropriate when dealing with people who, according to the requested State, be prosecuted for political crimes , or common crimes committed for political purposes, or when extradition is requested obeying political motives (Article 4);
h) European Convention on Extradition of 1957, prohibits extradition if the requested Party considers that the offense charged is a political (Article 3.1);
i) 2312 Declaration on Territorial Asylum of 1967 provides for the granting of asylum to persons who have that right under Article 14 of the Universal Declaration of Human Rights, including persons struggling against colonialism (Article 1.1). It prohibits the refusal of admission, expulsion and return to any State where he may be subject to persecution (Article 3.1);
j) Vienna Convention on the Law of Treaties of 1969, provides that the rules and principles of general international law imperatives do not support a contrary agreement, the treaty is void upon its conclusion conflicts with one of these rules (Article 53), and if a new peremptory norm of this nature, any existing treaty which conflicts with that provision is void and is terminated (Article 64). As regards the application of these Articles, the Convention allows States to claim compliance with the International Court of Justice, without requiring the agreement of the respondent State, accepting the court’s jurisdiction (Article 66.b). Human rights are norms of jus cogens.
k) American Convention on Human Rights, 1969: right to seek and enjoy asylum for political reasons (Article 22.7);
l) European Convention for the Suppression of Terrorism of 1977, the requested State is entitled to refuse extradition when there is a danger that the person is prosecuted or punished for their political opinions (Article 5);
m) Inter-American Convention on Extradition of 1981, the extradition is not applicable when the person has been tried or convicted, or is to be tried in a court of special or ad hoc in the requesting State (Article 4.3), when, under the classification of the requested State, whether political crimes or related crimes or crimes with a political aim pursued, and when, the circumstances of the case, can be inferred that persecution for reasons of race, religion or nationality; that the situation of the person sought may be prejudiced for any of these reasons (Article 4.5). Article 6 provides, in reference to the right of asylum, that “nothing in this Convention shall be construed as limiting the right of asylum, when the appropriate”.
n) African Charter on Human and Peoples of 1981, pursued individual’s right to seek and obtain asylum in other countries (Article 12.3);
o) Cartagena Declaration of 1984, recognizes the right to shelter, unless rejected at the border and not be returned.
p) Charter of Fundamental Rights of the European Union 2000: establishes the right of diplomatic and consular protection. Every citizen of the Union shall, in the territory of a third country not represented by the Member State of nationality, the protection of diplomatic and consular authorities of any Member State, under the same conditions as nationals of that State (Article 46).
The Government of Ecuador considers important to note that the rules and principles recognized in international instruments mentioned and in other multilateral agreements take precedence over domestic law of States, because these treaties are based on universalizing rules guided by principles intangible, which results in a greater respect, guarantee and protection of human rights against unilateral attitudes of such States. This would compromise international law, which should rather be strengthened, so that respect for fundamental rights is consolidated in terms of integration and ecumenical character.
Furthermore, since Assange applied for asylum in Ecuador, have maintained high-level diplomatic talks with the United Kingdom, Sweden and the United States.
In the course of these conversations, our country has called on the UK get more stringent safeguards for Assange front, unobstructed, open legal process in Sweden. These safeguards include, once vented their legal responsibilities in Sweden does not extradite to a third country, ie the guarantee does not apply the figure of the specialty. Unfortunately, despite the repeated exchanges of texts, the UK at no time showed signs of wanting to reach political compromises, merely repeat the content of legal texts.
Assange’s lawyers asked the Swedish justice take Assange statements in the premises of the Embassy of Ecuador in London. Ecuador has officially moved to the Swedish authorities willing to provide this interview with the intention not to interfere or impede the legal process is followed in Sweden. This measure is perfect and legally possible. Sweden did not accept.
On the other hand, Ecuador sounded the possibility that the Swedish government to establish safeguards that are not in sequence Assange extradited to the United States. Again, the Swedish government rejected any compromise in this regard.
Finally, Ecuador wrote to the U.S. government to officially unveil its position on the case Assange. Queries related to:
If there is an ongoing legal process or intend to carry out such process against Julian Assange and / or the founders of the organization Wikileaks;
Should the above be true, what kind of legislation, how and under what conditions would be subject to maximum penalties such persons;
If there is an intention to request the extradition of Julian Assange to the United States.
The U.S. response has been that it can not provide information about the Assange case, saying it is a bilateral matter between Ecuador and the United Kingdom.
With this background, the Government of Ecuador, true to its tradition of protecting those who seek refuge in its territory or on the premises of diplomatic missions, has decided to grant diplomatic asylum to citizens Assange, based on the application submitted to the President of the Republic, by written communication, dated London, June 19, 2012, and supplemented by letter dated at London on June 25, 2012, for which the Government of Ecuador, after a fair and objective assessment of the situation described by Mr. Assange, according to their own words and arguments, endorsed the fears of the appellant, and assumes that there are indications that it may be presumed that there may be political persecution, or could occur such persecution if measures are not taken timely and necessary to avoid it.
The Government of Ecuador is certain that the British Government know how to value justice and righteousness of the Ecuadorian position, and consistent with these arguments, confident that the UK will offer as soon as possible or safe passage guarantees necessary and relevant to the refugee situation, so that their governments to honor their acts of loyalty they owe to the law and international institutions that both nations have helped shape along their common history.
It also hopes to maintain unchanged the excellent ties of friendship and mutual respect which bind to Ecuador and the United Kingdom and their peoples, as they are engaged in promoting and defending the same principles and values, and because they share similar concerns about the democracy, peace, Good Living, which are only possible if you respect the fundamental rights of all.