The Pinochet Case (1998)

THE PINOCHET CASE 25 November 1998

Augusto Pinochet Ugarte

Augusto Pinochet Ugarte: Background •

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Pinochet was the Commander in Chief of the Chilean Army n 19!"# he assumed the title of President of the $e%ublic of Chile &is %residency lasted until 199' and his role as Commander in Chief until 1998 &is regime was (nown for its systematic and wides%read violations of human rights# with allegations of murder# torture and hostage ta(ing of %olitical o%%onents)

Facts •

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*n 11 +e%tember 19!,# -eneral Augusto Pinochet Ugarte assumed %ower in Chile as a result of a military cou% that overthrew the then government of President President Allende) n 1998# Pinochet went to United .ingdom for medical treatment and surgery

Facts •

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n 1998# the +%anish -overnment a%%lied for a warrant against Pinochet) A warrant was issued by /r) $onald 0artle# *ctober 22 1998# without Pinochet being heard# des%ite a written reuest that he should be heard to o%%ose the a%%lication  hat warrant was issued on the basis that there was evidence that he was accused "between 1  January 1988 and December 1992 being a public ofcial intentionally inicted severe pain or suering on another!panish citiens in #hile$ in the per%ormance or purported per%ormance o% his ofcial duties within the &urisdiction o% the 'overnment o% !pain() 

Facts •

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*inochet is no longer the +ead o% the !tate at the time o% issuance o% the arrest warrant and upon his arrest in 1998( Pinochet was arrested by the 3nglish authorities with a view to e4traditing him to +%ain where a +%anish udge had issued an international arrest arrest warrant) Pinochet a%%lied to have the arrest warrant uashed

Facts •

Pinochet claimed %rivilege and immunity from arrest on two grounds6 1) hat he was 7President of the -overnment unta of Chile7 from +e%tember 11# 19!, until une 2# 19!": and 7&ead of +tate of the $e%ublic of Chile7 from une 2# 19!" until /arch 11# 199': and 2) hat he was not and had not been a subect of +%ain and accordingly no e4tradition crime had been identi;ed)

Issue ta(ing among others? done while &ead of the +tate) NO (3: !ote"

#ord S$%nn o& Had$e% •

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 *n +tate mmunity he relevant %rovisions are6> =i? Article 296 7he %erson of a di%lomatic agent shall be inviolable) &e shall not be liable to any form of arrest or detention) he receiving +tate shall treat him with due res%ect and shall ta(e all a%%ro%riate ste%s to %revent any attac( on his %erson# freedom or dignity)7 dignity)7 =ii? 0y Article ,1=1?# a di%lomatic agent shall enoy immunity from the criminal urisdiction of the receiving +tate

#ord S$%nn o& Had$e% =iii? 0y Article ,96   71) 3very %erson entitled to %rivileges and immunities shall enoy them them from the moment he enters the territory territory of the receiving +tate on %roceedings to ta(e u% his %ost or# if already already in its territory# from the moment when his a%%ointment is noti;ed to the /inistry /inistry for oreign oreign ABairs or such other ministry as may be agreed) 2)
#O' NICHO##S6 •

t is necessary to distinguish three diBerent %rinci%les# two of which have been codi;ed in statutes and the third of which remains a doctrine of the common law) 1) +tate mmunity# formerly (nown as sovereign immunity# codi;ed in %art 1 of the +tate mmunity Act 19!8: 2) he Act of +tate# an Anglo>American common law doctrine : and ,) he %ersonal immunity of the head of state# his family and servants# codi;ed in section 2' of the +tate mmunity Act 19!8)

#ord Nicho$$s: On State I))unit% +ection 1 of the State I))unit% Act *+,- %rovides that 7a +tate is immune from •

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the urisdiction of the courts of the United .ingdom7# subect to e4ce%tions e4ce%tions set out in the subseuent sections 0y section 1"=1? references to a state include references to the sovereign or other head of that state in his %ublic ca%acity# its government and any de%artment of its government) hus the immunity of the state may not be circumvented c ircumvented by suing the head of state# or indeed# any other government oFcial# in his oFcial ca%acity)  he words 7in his %ublic ca%acity7 in section 1"=1?# read with section 1# refer to the ca%acity in which the head of state is sued# rather than the ca%acity in which he %erformed the act alleged to give rise to liability) +ection 1 of the Act deals with %roceedings which# at the time they are started# are in form or in substance %roceedings against the state# so that directly or indirectly the state will be aBected by the udgment) n the traditional language language of international international law# it is immunity ratione personae and personae and not ratione materiae) materiae) t %rotects the state as an entity) t is not concerned with the nature of the transaction alleged to give rise to liability) Nor is it concerned with whether# in an action against an oFcial or former oFcial which is not in substance an action against the state# he can claim immunity on the ground that in doing the acts alleged he was acting in a %ublic ca%acity) mmunity on that ground de%ends u%on the other %rinci%les) Part 1 of the Act does not a%%ly to criminal %roceedings

#ord Nicho$$s: Non./usticia0i$it% o& Act o& state n ,nderhill v( -ernande =189!? -ernande  =189!? 19 U)+) "56 73very sovereign state is bound to res%ect the inde%endence of every other sovereign state# and the courts of one country will not sit in  udgment on the acts of the government of another done within its own territory)7

#ord Nicho$$s: Persona$ I))unit% •

+ection 2' of the +tate mmunity Act 19!8 confers %ersonal immunity u%on a head of state# his family and servants by reference to the %rivileges and immunities enoyed by the head of a di%lomatic mission under the Gienna Convention on Hi%lomatic $elations 191) hese immunities include# 7immunity from the criminal  urisdiction of the receiving state)7 Accordingly Accordingly there can be no doubt that if +enator Pinochet had still been head of the Chilean state# he would have been entitled to immunity)

#ord Nicho$$s: On Continued I))unit% •


1eaning: 7A former head of state shall continue to enoy immunity from the criminal urisdiction of the United .ingdom with res%ect to acts %erformed by him in the e4ercise e4ercise of his functions as a head of state)7

#ord Nicho$$s: On Eercise o& Function as Head o& State n the case of a former head of state# the continuing immunity embraces acts %erformed in e4ercise of any  of  of his 7functions as a head of state7)

Iord Nicholls6 Torture and Hostage.taking are NOT functions of &ead of +tate All states disavow the use of torture as abhorrent# although from time to time some still resort to it) +imilarly# the ta(ing of hostages# as much as torture# has been outlawed by the international international community as an oBence) nternational law recognises# of course# that the functions of a head of state may include activities which are wrongful# even illegal# by the law of his own state or by the laws of other states) But internationa$ $a4 has )ade 5$ain that certain t%5es o& conduct6 inc$uding torture and hostage.taking6 are not acce5ta0$e conduct on the 5art o& an%one7 This a55$ies as )uch to heads o& state6 or e!en )ore so6 as it does to e!er%one e$se8 the contrar% conc$usion 4ou$d )ake a )ocker% o& internationa$ $a47

#ord Nicho$$s: Nicho$$s : Torture Torture and Hostage.taking •

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Acts of torture and hostage>ta(ing stand outside the limited immunity aBorded to a former head of state because those acts cannot 0e regarded 0% internationa$ $a4 as a &unction o& a head o& state or such reason# +enator Pinochet cannot bring himself within any such broad %rinci%le a%%licable to state oFcials) Acts of torture and hostage>ta(ing# outlawed as they are by international law# cannot be attributed to the state to the e4clusion of %ersonal %ersona l liabil l iability ity))

ecision 0y a maority of ,62 =Iords &oBman# Nicholls and +teyn?# their Iordshi%s allowed the a%%eal and held that Pinochet was entitled to not immunity