Re: Augusto Pinochet Ugarte

Court	High Court of Justice (Queen’s Bench Division), Great Britain (UK)
Case number	CO/4074/98
Decision title	Judgment
Decision date	28 October 1998
Parties	Crown Prosecution Service Nicholas Evans Ronald Bartle Secretary of State for the Home Department Augusto Pinochet Ugarte
Categories	Torture
Keywords	hostage, immunity, jurisdiction, torture
Links	Judgment
Other countries involved	Chile Spain

Summary

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.

By the present decision, the High Court of Justice quashed the arrest warrant on the grounds that Pinochet enjoyed immunity from criminal proceedings under the 1978 State Immunity Act. However, the Court delayed the effect of the quashing until such time as the matter had been decided on appeal to the House of Lords.

Procedural history

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.

Related developments

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.

By a decision of 24 March 1999, the House of Lords held that Pinochet does not enjoy immunity in respect of acts of torture committed after the entry into force of the 1984 Torture Convention for the UK, that is after 8 December 1988.

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 returned to Chile (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 (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 (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 also 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.

Legally relevant facts

Senator Augusto Pinochet Ugarte, the Applicant, was president of the governing junta in Chile from 11 September 1973 until 26 June 1974 and was the Head of State of the Republic of Chile from 26 June 1974 until 11 March 1990. He is now a senator for life.

He is a national of the Republic of Chile (para. 4).

Spain seeks the extradition of the Applicant because it is alleged that, as the Commander in Chief of the Armed Forces and head of the Chilean government, he gave orders to eliminate, torture and kidnap persons and cause others to disappear through the actions of the Secret Service (DINA) and a coordinated plan to repress citizens and residents of the country (para. 57).

Core legal questions

Is the Applicant entitled to immunity from criminal proceedings in respect of official acts performed by him whilst in office?
In the affirmative, is such immunity challenged by the nature of the crimes for which the Applicant’s extradition is requested? That is, can acts of torture and hostage taking amount to official acts in respect of which there is immunity?

Specific legal rules and provisions

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 first provisional arrest warrant was quashed for non-conformity with the requirements of the 1989 Extradition Act (para. 34).

Section 20 of the 1978 State Immunity Act, read in conjunction with Article 39 of the 1961 Vienna Convention on Diplomatic Relations, incorporated by reference, provides that a former Head of State enjoys immunity from criminal proceedings in respect of acts performed in the course of exercising public functions (para. 63).

The Court did not accept the Crown’s arguments, representing the Kingdom of Spain’s interests, that such immunity is not available in face of serious international crimes such as torture and hostage taking. To this end, it dismissed reliance on the statutes of international tribunals which provide for no immunity from proceedings (paras. 66 – 68), and United States decisions which were not sufficiently similar to be relied upon (paras. 69 – 71).

The Court therefore held that the Applicant was entitled to immunity (para. 74). It, however, chose to stay the effect of the quashing of the second provisional arrest warrant