Pinochet Wins in Court, Must Await Appeals

Former Chilean dictator Gen. Augusto Pinochet on Wednesday won a High Court challenge of his arrest here to face charges of genocide and torture during his 17-year reign, but he was ordered to remain in British custody pending the outcome of any appeals.

Lord Chief Justice Thomas Bingham and two other British judges ruled that, although Pinochet is no longer the leader of Chile, he is entitled to immunity from British judicial proceedings for crimes he allegedly committed while he served as head of state. They also ordered the British government to pay Pinochet’s legal costs.

The decision is a significant victory for the 82-year-old Pinochet, who is under police guard in a private London clinic where he is recovering from back surgery. The judges quashed provisional warrants for Pinochet’s extradition issued by Spanish Judge Baltasar Garzon, who wants him to stand trial for the murder and torture of Spanish citizens while he held power from 1973 to 1990.

The ruling presumably would apply to other international efforts to seek Pinochet’s extradition and trial. Switzerland also has filed an extradition request, and lawyers in France, Sweden and Britain representing relatives of Chilean victims are mounting cases against him.

Appeals of Wednesday’s rulings would be heard by a committee of the House of Lords, the country’s most senior court, possibly as early as next week. The Crown Prosecution Service, which would act on the extradition requests, said Wednesday that it will file an appeal Monday.

Meanwhile, magistrates must decide whether to release Pinochet from the clinic on bail.

Chilean exiles reacted to the High Court decision with tears of anger and cries of “Assassin!” outside the courtroom. Police separated Pinochet’s lawyer from the irate crowd, while at the clinic, demonstrators jeered Pinochet’s wife, Lucia, and three children when they arrived after the ruling.

“Pinochet overthrew a legitimate government and named himself head of state,” said Vicente Alegria, speaking for Chilean exiles in London. “He kidnapped and tortured and now claims immunity as a head of state.”

In the Chilean capital, Santiago, retired Gen. Luis Cortes Villa, the stern head of the ex-dictator’s Pinochet Foundation, almost broke down as he expressed his happiness to a crowd of reporters.

“It is the nation that has won a victory,” Cortes said. Then his voice broke and his eyes glistened with tears.

But leftists and students promised to hold a rally today in downtown Santiago, with or without a permit, raising the possibility of new clashes with police.

Pinochet overthrew elected President Salvador Allende, a socialist, in a bloody coup in 1973. Human rights activists charge that more than 4,000 people were killed for political reasons or disappeared during his regime, including many who held foreign passports. Tens of thousands were imprisoned, tortured and exiled.

“This is total legal nonsense,” said Graham Ennes, a British human rights activist. “This means that Hitler could have come to London after the war. It gives people like Saddam Hussein complete impunity in London.”

Bingham said his ruling would not prevent Pinochet or others like him from being tried in an international court.

“It is of course a matter for acute public concern that those who abuse sovereign power to commit crimes against humanity should not escape trial and appropriate punishment,” the judge said.

But he added that not even the charter that established the International War Crimes Tribunal at Nuremberg in 1945 invalidated the principle of immunity, “that one sovereign state will not impugn another in relation to its sovereign acts.”

Pinochet, he said, “is entitled to immunity as a former sovereign from the criminal and civil process of the English courts.”

The Spanish government said it will respect the ruling, but Garzon vowed to continue seeking Pinochet’s extradition. The government of Chile welcomed the decision.

“The Chilean government is very happy and satisfied that the British High Court has recognized Sen. Pinochet’s immunity,” Deputy Foreign Minister Mariano Fernandez told reporters at the Chilean Embassy here. (Pinochet holds the title of senator for life.)

The case has not only provoked high emotions in Chile but been heatedly debated in Britain, where Prime Minister Tony Blair has insisted that the arrest was a judicial rather than political matter.

Pinochet arrived in London on Sept. 22 and received a VIP welcome from the Foreign Office. He stayed in an exclusive West London hotel and had drinks with former Prime Minister Margaret Thatcher and her husband at their home days before entering the private London Clinic for back surgery Oct. 9.

While still recovering from the surgery, Pinochet was placed under police guard at the clinic Oct. 17 in response to a provisional Spanish extradition warrant communicated to the Metropolitan Police through Interpol.

As Blair tried to distance himself from the issue, members of his Labor government supported it. Thatcher, whose Conservative government turned to Pinochet for help during the 1982 Falklands War with Argentina, called for the retired general’s release. Britain’s liberal newspapers backed the arrest, while conservative ones echoed Thatcher.

On Wednesday, the Tory opposition charged that Blair’s government had made a “dreadful mess” with the Pinochet arrest that threatened the stability of Chile, and it urged the government not to appeal the High Court decision. Opposition spokesman Norman Fowler said: “The lord chief justice of England has now found that the government did not even know the meaning of diplomatic immunity.”

Blair responded that the government was not involved in issuing warrants or appeals.

“That is done by the Spanish authorities to the British magistrates, who then take it from there,” Blair said.

Some legal experts said they thought that the High Court had made a sound, if politically unpopular, legal decision in a precedent-setting case for England, and that the House of Lords was unlikely to reverse it.

“It sounds to me as if there is a strong legal point. On a technical basis, it may be the right decision,” said Maurice Mendelson, a professor of international law at University College London.

“Rightly or wrongly, governments over the centuries, for the purpose of smooth relations, have decided they need to have immunities. Sometimes, this comes into conflict with the more recent policies of the international community to condemn torture and murder. . . . But there is a strong legal argument that the immunity survives unless your government waives it,” Mendelson said.

In this case, the Chilean government supported Pinochet’s claim to immunity.

“Transitions to democracy, whether it is Chile or South Africa or wherever, often are the result of a bargain between outgoing tyrants and incoming governments that include an amnesty or pardon,” Mendelson said. “That was the deal in Chile, even if it was made with a gun to their head. And you can ask whether it is appropriate for the United Kingdom or Spain to second-guess Chile.”

Yes, said human rights activists who vowed to keep up efforts to bring Pinochet to trial. Amnesty International issued a statement calling the High Court decision “out of step with the spirit of existing international law and . . . in flat contradiction to the way the soon-to-be-established International Criminal Court will operate.”

Times Buenos Aires Bureau Chief Sebastian Rotella and Janet Stobart of The Times’ London Bureau contributed to this report.