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Chile: Pinochet Escapes Justice

But his Prosecution Changed History

(New York) - The Chilean Supreme Court's decision to terminate the prosecution of Gen. Augusto Pinochet was regrettable even though widely expected, Human Rights Watch said today. In a ruling made public this afternoon, the court held that the former dictator was too ill to undergo trial for grave human rights crimes, upholding an appeals court ruling issued a year ago.

Relatives of thousands of victims of Pinochet's rule will be deeply disappointed by this verdict, and the medical and legal grounds for the decision will continue to be disputed," said José Miguel Vivanco, executive director of the Americas Division of Human Rights Watch. "Even so, Pinochet's arrest in London in 1998 and his subsequent prosecution in Chile -- where he had enjoyed untrammeled power for two decades -- were historic events marking new possibilities for international justice."  
 
The five judges of the Second Chamber of the Supreme Court ruled by four votes to one that the case against Pinochet should be permanently closed because of his allegedly ailing mental health. The appeals court had ruled that it be only temporarily suspended.  
 
Only days ago, the Supreme Court unanimously authorized the appeals court to consider proceedings to remove Pinochet's parliamentary immunity, with a view to his prosecution for the 1974 murder in Buenos Aires of former army commander Gen. Carlos Prats. An Argentine judge has repeatedly requested the Chilean judiciary to open the proceedings so that Pinochet could be extradited to Argentina to stand trial for that crime. The key question now is whether lawyers for the Prats family will find legal arguments to surmount the obstacle presented by today's decision.  
 
Chile's code of criminal procedure stipulates that defendants must be suffering from "madness" (locura) or "dementia" (demencia) before trial proceedings may be suspended for mental health reasons. On the basis of medical tests performed on Pinochet in January 2001, a team of independent experts concluded that he was suffering from "moderate dementia." The Supreme Court, disagreeing with many legal experts, held that this level of mental disability was sufficient to satisfy the requirements of the code of criminal procedure.  
 
The appeals court had suspended the prosecution based on a provision in Chile's new criminal procedure code that allows judges to suspend trials if the due process rights of the defendant cannot be guaranteed. The Supreme Court disagreed with this ruling, reasoning that the law had not yet entered into force in Santiago. All references to the new code were struck from the final verdict.  
 
Pinochet's 1998 arrest in London 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. He was allowed to return to Chile in early 2000, ostensibly on health grounds.  
 
Pinochet had faced prosecution for covering up fifty-seven extrajudicial executions and eighteen kidnappings carried out by members of the "Caravan of Death," a helicopter-borne military squad that executed and "disappeared" seventy-five political prisoners shortly after the 1973 coup.

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