On September 27, 1999, formal extradition ("committal") proceedings against Gen. Augusto Pinochet will begin. These proceedings are expected to last about a week. Human Rights Watch, which took part in the Pinochet hearings before the House of Lords, has prepared the following background paper to help untangle some complex legal issues.
"The major legal hurdle to Pinochet's prosecution was overcome when the House of Lords ruled that he had no immunity," said Reed Brody, Advocacy Director of Human Rights Watch. "He can drag this out with appeals, but he has no legal defense to the very solid and substantial charges which remain in the case, " added Brody.
How will the committal hearing be structured?
The hearing at Bow Street magistrates' court should last four or possibly five days. First the Crown Prosecution Service (CPS), representing Spain, will present its case. That should take about one and one half days. Then Pinochet's lawyers will present their defenses, which could take an equal amount of time. The CPS will then be able to reply. It is expected that Magistrate Ronald Bartle will then give a decision two weeks later. General Pinochet will not appear during the proceedings, but will be present when the decision is read.
What are the charges against General Pinochet?
The House of Lords, in its second ruling of March 24, 1999, ruled that the only allegations for which General Pinochet could be extradited were torture and conspiracy to torture after December 8, 1988, when the U.N. torture convention took effect in the U.K. The original Spanish extradition request also included charges of genocide, hostage-taking and conspiracy to murder. These charges were eliminated either by the House of Lords (hostage-taking and conspiracy to murder) or by the Secretary of State (genocide).
How many cases of torture are now included in the charges?
After the House of Lords ruling, Spanish magistrate Baltasar Garzon added a total of 60 cases of torture occurring after December 8, 1988. The most salient of these cases -- some 36 -- will be presented by the CPS.
In addition, the indictment alleges over 1,000 cases of "disappearances." International law considers "disappearances" to be continuing crimes as long as the fate of the "disappeared" remains hidden - and thus they continue past 1988 even if the victims were abducted earlier. Several international declarations and court decisions consider "disappearances" to be a form of torture as regards the loved ones of the "disappeared" person and potentially as regards the "disappeared" person himself.
What about the charge of conspiracy to commit torture?
Given the Lords' elimination of the vast majority of individual acts of torture, the conspiracy charge assumes a central role in the prosecution. As Lord Hope emphasized in the Lords' decision, the "case which is being made against Senator Pinochet...is that each act of torture has to be seen in the context of a continuing conspiracy to commit torture. As a whole, the picture which is presented is of a conspiracy to commit widespread and systematic torture and murder in order to obtain control of the government and, having done so, to maintain control of government by those means for as long as might be necessary." Much of this "continuing conspiracy" -- the creation of the secret police, state approval and tolerance of torture, the establishment of Operation Condor targeting Pinochet's opponents abroad -- took place before December 1988. Spain will not be able to prosecute Pinochet for the substantive crimes (i.e. the acts of torture) from the earlier period, but it can introduce proof of those crimes as part of the process of demonstrating the conspiracy.
What must the Crown Prosecution Service show in the extradition proceedings?
According to the European Convention on Extradition, to which both the U.K. and Spain are parties, the CPS must present "a statement of the offences for which extradition is requested" including the "time and place of their commission, their legal descriptions and a reference to the relevant legal provisions." In addition, the CPS must present authenticated copies of the relevant Spanish warrants and decrees and their translations as well as information establishing General Pinochet's identity.
Is the Crown required to establish a prima facie case against General Pinochet?
No. The CPS needs only to establish that the formalities of extradition have been complied with. In most extradition proceedings in the U.K., the requesting state must present evidence which "would be sufficient to warrant his trial if the extradition crime had taken place" in the U.K -- the so-called prima facie case. European countries have a special arrangement, however. Under the European Convention on Extradition there is no evidentiary burden - only the formalities must be presented.
What will General Pinochet's defense be?
The opportunities for General Pinochet at this stage are very narrow, given the rules of the European Convention on Extradition. His lawyers may argue that the allegations do not amount to extraditable offenses under Spanish law or under English law. They may argue that because the post-1988 cases do not involve Spanish victims, Spain has no jurisdiction. They might assert that the CPS cannot now add new acts of torture to the charges. They may challenge the inclusion of the "disappearance" cases.
If the magistrate rules that General Pinochet be committed for extradition, can he appeal?
Pinochet can bring a habeas corpus proceeding before the Divisional Court. Under Britain's Extradition Act, Pinochet can seek to be discharged on any of the following grounds: the trivial nature of the offence, the passage of time since the offense was committed, bad faith in the accusation, or, having regard to all the circumstances, that it would be "unjust or oppressive" to send him to Spain.
If the Divisional Court rules against him, can General Pinochet appeal to the House of Lords?
If leave is granted, Pinochet may take his habeas corpus application up to the House of Lords. Some lawyers assert that he may do this as of right, without seeking leave to appeal.
What happens when Pinochet's appeals are exhausted?
The matter returns to the Home Secretary, Jack Straw, who makes a final decision on his extradition. He may refuse extradition on any of the grounds reviewed by the Divisional Court during the habeas corpus proceedings (see above), or under his general discretionary powers. The Home Secretary, in issuing his second Authority to Proceed on April 15, stated that in his final decision he would "consider the extradition request afresh...tak[ing] into account any findings in the committal proceedings and any habeas corpus proceedings as well as any representations which Senator Pinochet may wish to make against return." In particular, the Secretary indicated that the question of whether Pinochet's "age and health would render it unjust or oppressive" to extradite him was a "question, among others, [which could] be re-examined in the light of any developments, at the stage when he comes to exercise his final discretion at the end of the extradition process."
Can Pinochet challenge the Home Secretary's final ruling?
Yes. If Pinochet is given leave, he can seek a judicial review of the Secretary's decision before the Divisional Court on the ground that the Secretary exercised his discretion unreasonably. Given the Secretary's wide discretion, however, the likelihood of success is extremely narrow. The decision of the Division Court can be appealed to the House of Lords only if leave is granted.
Would Spain's prosecution of Pinochet be limited to those crimes for which he is extradited?
Yes. Under the long-standing extradition rule of "specialty," as well as under the European Convention on Extradition, Spain could not try Pinochet for crimes other than those for which he was extradited, and could not re-extradite him to a third country, without the consent of the United Kingdom.