Regina (the Crown) v. Bartle and the Commissioner of Police for the Metropolis and Others ex parte Pinochet; Regina v. Evans and Another and the Commissioner of Police for the Metropolis and Others ex parte Pinochet
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||House of Lords, Great Britain (UK)
||24 March 1999
- Crown Prosecution Service
- Nicholas Evans
- Ronald Bartle
- Augusto Pinochet Ugarte
||hostage, immunity, jurisdiction, torture
|Other countries involved
On 11 September 1973, General Augusto Pinochet Ugarte assumed power in Chile as a result of a military coup that overthrew the then government of President Allende. Pinochet was the Commander in Chief of the Chilean Army until 1974 when he assumed the title of President of the Republic. His presidency lasted until 1990 and his role as Commander in Chief until 1998. His regime was known for its systematic and widespread violations of human rights, with allegations of murder, torture and hostage taking of political opponents.
In 1998, during a visit to the United Kingdom for medical treatment, Pinochet was arrested by the English authorities with a view to extraditing him to Spain where a Spanish judge had issued an international arrest warrant. His extradition was, however, not to proceed smoothly as Pinochet applied to have the arrest warrant quashed on the grounds that as a former Head of State he enjoyed immunity from criminal proceedings.
The present decision of 24 March 1999 by the House of Lords held that Pinochet is not entitled to immunity in respect of charges of torture and conspiracy to commit torture where such conduct was committed after 8 December 1988, the date upon which the 1984 Torture Convention entered into force in the UK. This temporal qualification significantly limited the charges for which Pinochet can be extradited to Spain as the majority of the conduct alleged was either not an extraditable offence or was committed prior to this date. Under English law, it was now for the Home Secretary, then Jack Straw, to decide whether or not to issue an authority to proceed with extradition.
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On 16 October 1998, a Spanish judge issued an international arrest warrant for the Respondent, Augusto Pinochet Ugarte. In order to respond to the need to execute the international arrest warrant as the Respondent was at the time in England on a medical visit and due to depart to Chile the following day, a Metropolitan Magistrate issued a provisional arrest warrant on the grounds that between 1973 and 1983 he murdered Spanish citizens in Chile.
This arrest warrant was deficient as the offence on which it was based was not an extraditable offence. Consequently, on 18 October 1998, the Spanish judge issued a second international arrest warrant for the Respondent (in Spanish only).
That same day, a second provisional arrest warrant was issued by another Metropolitan Magistrate on the grounds that between 1988 and 1992 the Respondent committed, inter alia, acts of torture and hostage taking.
On 23 October 1998, the Respondent was arrested in England.
On 22 and 26 October, the Respondent applied to quash the first and second provisional arrest warrants respectively.
By a decision of 28 October 1998, the High Court of Justice held that Pinochet was entitled to immunity from criminal proceedings. It quashed the first arrest warrant but stayed the effect of the quashing of the second warrant until such time as the matter had been decided on appeal.
By a 3:2 decision of 25 November 1998, the House of Lords found that Pinochet was not entitled to immunity from criminal proceedings and therefore the extradition procedure could go ahead.
Pinochet petitioned the House of Lords to set aside its decision of 25 November 1998 on the grounds of an appearance of bias between one of the members of the Appellate Committee, Lord Hoffmann, and Amnesty International, the human rights organisation who was admitted as intervener in the appeal.
By a decision of 17 December 1998, the decision of 25 November 1998 was set aside. See also The Economist, 'The Law Lords and the General', 17 December 1998.
Pinochet was therefore entitled to a new hearing on his original immunity claim.
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In response to questions about the Respondent’s allegedly fragile state of health, the Home Secretary ruled in January 2000 that the Respondent should not be extradited. Accordingly, by a decision of 2 March 2000, the Home Secretary ordered the release of the Respondent who subsequently returned to Chile. See BBC News, 'Pinochet Set Free', 2 March 2000.
On 8 August 2000, the Supreme Court of Chile voted to strip Pinochet of the immunity he enjoyed by virtue of his parliamentary position.
On 1 December 2000, Pinochet was indicted for the kidnapping of 75 political opponents. See BBC News, 'Pinochet Charged with Kidnapping', 1 December 2000.
On 11 December 2000, the Court of Appeal of Santiago halted the proceedings for medical reasons.
On 30 January 2001, the judge reissued the arrest warrant for Pinochet but proceedings were again halted for medical reasons. In July 2002, the Supreme Court of Chile dismissed Pinochet’s indictment in the various cases against him for medical reasons. See BBC News, 'Pinochet Arrest Ordered', 30 January 2001.
Shortly after the decision, Pinochet resigned from the Senate but continued to enjoy immunity from prosecution by virtue of a constitutional amendment that was brought about in 2000.
On 8 September 2006, the Supreme Court of Chile stripped Pinochet of his immunity. See BBC News, 'Court Lifts Pinochet Immunity’, 8 September 2006.
On 30 October 2006, Pinochet was charged with 36 counts of kidnapping, 23 counts of torture, and one of murder for the torture and disappearance of opponents of his regime at Villa Grimaldi. See Human Rights Watch, 'Chile: Pinochet Finally Faces Torture Charges'.
On 28 November 2006, Pinochet was placed under house arrest.
He died on 10 December 2006.
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Legally relevant facts
On 11 September 1973, a right wing military coup overthrew the government of President Allende in the Republic of Chile. The coup was led by a military junta of which Pinochet was the leader. He was the Commander in Chief of the Armed Forces until 1974 when he assumed the title of President of the Republic. He remained in power until 1990 (p. 3).
The regime of Pinochet was known for appalling acts of barbarism committed in Chile and elsewhere in the world: torture, murder and the unexplained disappearance of individuals on a large scale. The international arrest warrant from Spain alleges that these acts were done in pursuance of a conspiracy to which Pinochet was a party, at his instigation and with his knowledge (p. 4).
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Core legal questions
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- Is Pinochet entitled to immunity as a former Head of State in respect of the charges of torture and hostage taking that are advanced against him?
Specific legal rules and provisions
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- Articles 4 and 6 of the Convention on the Prevention and Punishment of the Crime of Genocide.
- Articles 28, 29 and 31 of the Vienna Convention on Diplomatic Relations.
- International Convention against the Taking of Hostages.
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
- Section 134(1) of the 1988 UK Criminal Justice Act.
- Sections 2(1)(b) and 8(1)(b) of the 1989 UK Extradition Act.
- Sections 1, 14, 16(4), 20(1) and (5) of the UK State Immunity Act.
- UK Diplomatic Privileges Act.
- Uk Taking Hostages Act.
Court's holding and analysis
The Court, having determined that an offence is only extraditable within the menaing of the 1989 Extradition Act if the conduct was criminalised at the time of its commission in both the requested State and the requesting State. Consequently, the only offences for which Pinochet could be extradited (if he is found not to have immunity) are charges of torture and conspiracy to torture committed after 29 September 1988, the date on which section 134 of the Criminal Justice Act entered into force in the UK (pp. 11, 23, 44, 50, 53, 75).
There being general agreement between the parties and their Lordships that former Heads of State are entitled to immunity in respect of acts performed by them in their official capacity (pp. 17, 24, 56, 81, 84, 101), the question to be determined is whether such immunity stands in relation to the crime of torture i.e. whether performing acts of torture can be deemed official acts (pp. 16, 18).
In a 6 to 1 decision, their Lordships held that Pinochet did not enjoy immunity from criminal proceedings in respect of allegations of torture. The majority, relying on the 1984 Torture Convention, reasoned that acts of torture cannot be considered official acts of a Head of State as such an interpretation would be inconsistent with the very definition of the crime, which requires that it be performed by a person acting in an official capacity, and would frustrate the system of universal jurisdiction provided for by the Convention by precluding proceedings outside of the official’s State unless that State was willing to waive immunity (pp. 19 – 20, 77, 81, 92 – 93).
Only Lord Goff found that nothing in the Torture Convention could be construed as an express waiver of state immunity, nor could such a waiver be reasonably implied (pp. 31 – 37).
The appeal was therefore allowed (pp. 20, 62, 79, 83, 95, 108); extradition proceedings could proceed on allegations of torture committed after 8 December 1988, when Pinochet can be said to have lost his immunity as the Torture Convention entered into force in the UK.
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- N. Roht-Arriaza, 'The Pinochet Precedent and Universal Jurisdiction', New England Law Review, 2010, Vol. 36, pp. 311-320;
- S. Waltz, 'Prosecuting Dictators: International Law and the Pinochet Case', World Policy Journal, 2001, Vol. 18, pp. 101-112;
- C. Pierson, 'Pinochet and the End of Immunity: England’s House of Lords Holds that a Former Head of State is Not Immune for Torture', Temple International and Comparative Law Journal, 2000, Vol. 14, pp. 263-326;
- G. Sison, 'A King No More: The Imoact of the Pinochet Decision on the Doctrine of Head of State Immunity', Washington University Law Quarterly, 2000, Vol. 76, pp. 1583 et seq.;
- M. Byers, 'The Law and Politics of the Pinochet Case', Duke Journal of Comparative & International Law, 2000, Vol. 10, No. 2;
- C. Warbrick & D. McGoldrick, 'The First Pinochet Case: Immunity of a former Head of State', International and Comparative Law Quarterly, 1999, Vol. 48, pp. 207-216;
- A. Bianchi, 'Immunity versus Human Rights: the Pinochet Case', European Journal of International Law, 1999, Vol. 10, pp. 237-277;
- N. Bhuta, 'Justice Without Borders: Prosecuting General Pinochet', Melbourne University Law Review, 1999, Vol. 23, No. 2;
- C.A. Bradley & J.L. Goldsmith III, 'Pinochet and International Human Rights Litigation', Michigan Law Review, 1999, Vol. 97.
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- Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 227, 9 December 1948, entered into force 12 January 1951.
- Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, entered into force 24 April 1964.
- International Convention against the Taking of Hostages, as adopted by the UN General Assembly, 17 December 1979.
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, entered into force 26 June 1987.
- UK, Extradition Act, 27 July 1989.
- UK, Diplomatic Privileges Act, 31 July 1964.
- UK, State Immunity Act, 20 July 1978.
- UK, Taking Hostages Act, 13 July 1982.
- UK, Criminal Justice Act, 29 July 1988.
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- G. Robertson, 'Dictator in the Dock', The Guardian, 1 April 1999;
- Ecumenical News International, 'British Church Leaders Hail Ruling on Banning Immunity for Pinochet', The Deseret News, 27 March 1999;
- W. Hoge, 'Pinochet Arrest Upheld, but Most Charges Are Discarded', The New York Times, 25 March 1999;
- BBC, 'Thatcher: Send Pinochet Home', BBC News, 24 March 1999;
- T. Tricot, 'A Little Justice for Major Crimes', The Guardian, 24 March 1999;
- A. McSmith, 'Law Lords to Muddy Waters on Pinochet', The Guardian, 21 March 1999.