Regina 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

Court	House of Lords, Great Britain (UK)
Decision title	Opinions of the Lords of Appeal for Judgement in the Cause
Decision date	25 November 1998
Parties	Crown Prosecution Service Nicholas Evans Ronald Bartle Augusto Pinochet Ugarte
Other names	Pinochet I
Categories	Genocide
Keywords	genocide, hostage, immunity, jurisdiction, Murder, torture
Links	Opinions of the Lords of Appeal for Judgement in the Cause
Other countries involved	Belgium 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 a decision of 25 November 1998, the House of Lords in a 3:2 majority held that Pinochet was not entitled to immunity from criminal proceedings and could therefore be extradited.

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 (see here 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.

On 28 October 1998, the High Court granted the Respondent leave to apply for a writ of certiorari. At the same time, the first arrest warrant was quashed. The quashing of the second arrest warrant was stayed pending an appeal to the House of Lords, the highest court in England.

Hearings before the House of Lords were heard on 4, 5 and 9 to 12 November 1998.

Related developments

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 Law Lords and the General', The Economist, 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 (see 'Pinochet Set Free', BBC News, 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 'Pinochet Charged with Kidnapping', BBC News, 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 'Pinochet Arrest Ordered', BBC News, 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 'Court Lifts Pinochet Immunity’, BBC News, 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 twelve days later, on 10 December 2006.

Legally relevant facts

On 11 September 1973, General Augusto Pinochet Ugarte assumed power in Chile after a military coup. He was appointed president of the governing military junta on the same day.On 22 September 1973, the new regime was recognised by the British government. By a decree of 11 December 1974, General Pinochet assumed the title of President of the Republic. Following democratic elections in December 1989, General Pinochet handed over power to President Aylwin on 11 March 1990 (p. 24).

Core legal questions

Is the Respondent entitled to immunity either by virtue of State immunity or Head of State 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

It is necessary to distinguish between three different principles. First, State immunity, as codified in Part I of 1978 State Immunity Act. Second, personal immunity of Heads of State, codified in Part II of the same Act. Third, the act of State doctrine, which remains a common law matter (p. 43).

Although State immunity under Part I extends to Heads of State, it does not apply in respect of criminal proceedings (p. 44).

The act of State doctrine is inapplicable in the present instance as Parliament has shown that the conduct with which the Respondent is charged is a justiciable matter before the English courts by enacting section 134(1) of the 1988 Criminal Justice Act defining torture and section 1(1) of the 1982 Taking Hostages Act (p. 45).

With respect to personal immunity, section 20 of the 1978 State Immunity Act confers immunity from criminal proceedings upon Heads of State. Following an interpretation of Article 39(2) of 1961 Vienna Convention on Diplomatic Relations, incorporated by reference, this immunity extends to former Heads of State in respect of official acts (p. 46). Official acts are those recognised by international law as functions of a Head of State, irrespective of the terms of individual’s domestic constitution. Accordingly, acts of torture and hostage taking are not functions of a Head of State and therefore no immunity can attach to them in respect of criminal proceedings (p. 47).

By a majority of 3:2 (Lords Hoffman, Nicholls and Steyn), their Lordships allowed the appeal and held that the Respondent was not entitled to immunity (pp. 49, 56).