"It's a terrible disappointment for Pinochet's thousands of victims that he may never have to face trial," said Jose Miguel Vivanco, Executive Director of Human Rights Watch's Americas division. "But the fact that he was arrested in England, that he was charged in Chile despite his self-amnesty, and that the truth about his personal involvement in atrocities was revealed, has advanced the cause of justice in Chile and the world. The Pinochet case marks the beginning of the end of impunity for the worst state crimes."
Pinochet's London arrest helped to establish the principle that grave human rights crimes are subject to "universal jurisdiction" and can be prosecuted anywhere in the world. Two rulings by the House of Lords found that Pinochet was not immune from prosecution even though he was head of state at the time the crimes were committed. Once Pinochet was returned to Chile, ostensibly on health grounds, the myth of his immunity had been totally shattered. The reinvigorated Chilean courts skirted the 1978 military self-amnesty by ruling that prosecutions of ongoing "disappearances" are not barred, because the crime continues as long as the fate of the victim is concealed. Pinochet could thus be prosecuted for his role in the "Caravan of Death," a helicopter-borne military group that executed and "disappeared" seventy-five political prisoners shortly after the 1973 coup. In a historic ruling last August, the Chilean Supreme Court lifted Pinochet's senatorial immunity. Details about Pinochet's personal involvement in the "Caravan of Death" came out for the first time.
The Appeals Court today ruled that Pinochet was not competent to stand trial. The decision effectively marks the end of the Pinochet trial. Although one avenue of appeal is left to lawyers representing the victims, chances of success are considered to be minimal.
In January this year, a team of six experts established unanimously that Pinochet suffered from "light to moderate" dementia caused by the after effects of a series of minor strokes, but did not find that he was insane or mentally incapacitated. The medical evidence was gathered in four days of tests done between January 10 and 13, 2001, by six psychiatrists and neurologists attached to the government Medical Legal Service and the Faculty of Medicine of the University of Chile. They were observed by
one independent expert chosen by either side. The procedures appeared to be thorough, professional, and impartial.
The experts disagreed on whether Pinochet's mental difficulties were serious enough to affect his ability to undergo the rigors of a trial. Trial in Chile is largely a written procedure and does not involve the public appearance of the defendant in court. After deposing Pinochet in person and studying the medical reports, the investigating judge, Juan GuzmanTapia, concluded that his condition was not serious enought to meet the high threshold for exemption required by Chilean law (madness or dementia). Today, the three-person Appeals Court panel ruled, by two votes to one, that his condition did meet that threshold. The difference between Judge Guzman's conclusions and those of the Appeals Court appears to be based on their interpretations of the term "dementia" in Chilean law.
"The criteria that should have been applied are whether Pinochet is fit enough to understand the charges and to instruct his defense; whether he possesses reasonable powers of recall; and whether his cognitive and reasoning capacities are sound," said Vivanco. "The indications are that at present Pinochet could be tried without a violation of due process. If the trial continued and his condition deteriorated, his lawyers would have been entitled to ask the judge to halt the trial at any time."
"Pinochet will probably end his years at home, but would-be dictators should pause and ponder on his destiny," said Vivanco. "His arrest in London changed history. Now history will give the final verdict on his rule."