Augusto Pinochet's arrest and trial

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General Augusto Pinochet was indicted in 1998 by the Spanish magistrate Baltasar Garzón, arrested in London and finally released by the British government in 2000. Authorized to freely return to Chile, he was there first indicted by the judge Juan Guzmán Tapia, and charged of a number of crimes, before dying on 10 December 2006, without having been convicted in any case. Pinochet's arrest in London made the front-page of newspapers worldwide as not only did it involve the head of the military dictatorship that ruled Chile from 1973 to 1990, but it was the first time that several European judges applied the principle of universal jurisdiction, declaring themselves competent to judge crimes committed by former head of states, despite local amnesty laws.

Pinochet came to power in a violent coup which deposed President Salvador Allende. His regime has been accused of numerous human rights violations, a number of which committed as part of Operation Condor, an illegal effort to suppress political opponents in Chile and abroad in coordination with foreign intelligence agencies. Pinochet was also accused of using his position to pursue personal enrichment through embezzlement of government funds, illegal drug trade and illegal arms trade.

Pinochet's attorneys, headed by Pablo Rodríguez Grez (former leader of the far-right group Fatherland and Liberty), argued that he was entitled to immunity from prosecution first as a former head of state, then under the 1978 amnesty law passed by the military junta. They furthermore claimed that his alleged poor health made him unfit to stand trial. A succession of judgments by various Courts of Appeal, the Supreme Court, medical expertises, etc., led to Pinochet's successive house arrest and liberation, before he finally died on 10 December 2006, just after having being again ordered of house arrest on 28 November 2006 in the Caravan of Death case [1].

At the time of his death, Pinochet had been implicated in over 300 criminal charges in Chile [2], including the Caravan of Death case (case closed in July 2002 by the Supreme Court of Chile, but re-opened in 2007 following new medical expertises), Carlos Prats's assassination (case closed on 1st of April 2005), Operation Condor (case closed on 17 June 2005), Operation Colombo, Villa Grimaldi case, Carmelo Soria case, Calle Conferencia case, Antonio Llidó case, Eugenio Berrios case, tax evasion and passport forgery [2][3].

Contents

[edit] Context

Further information: Chile under Pinochet

The Rettig Report found that at least 2,279 persons were conclusively murdered by the Chilean government for political reasons during Pinochet's rule, and the Valech Report found that at least 30,000 persons were tortured by the government for political reasons.

[edit] 1998 Arrest in London

In 1998 Pinochet, who still had much influence in Chile, travelled to the United Kingdom for medical treatment — allegations have been made that he was also there to negotiate arms contracts [4]. While there, he was arrested under an international arrest warrant issued by judge Baltasar Garzón of Spain, and was placed under house arrest: initially in the clinic where he had just undergone back surgery, and later in a rented house. The charges included 94 counts of torture of Spanish citizens, the 1975 assassination of Spanish diplomat Carmelo Soria, and one count of conspiracy to commit torture —allegations of abuses had been made numerous times before his arrest, including since the beginning of his rule, but never acted upon. Still struggling with the conditions set by the difficult transition to democracy, the Chilean government of the Concertación, then headed by President Eduardo Frei Ruiz-Tagle, opposed his arrest, extradition to Spain, and trial.

There was a hard-fought 16-month legal battle in the House of Lords, the highest court of the United Kingdom.[5] Pinochet claimed immunity from prosecution as a former head of state under the State Immunity Act 1978. This was rejected, as the Lords decreeded that some international crimes, such as torture, could not be protected by former head-of-state immunity [6]. The Lords, however, decided in March 1999 that Pinochet could only be prosecuted for crimes committed after 1988, the date during which the United Kingdom implemented legislation for the United Nations Convention Against Torture in the 1988 Criminal Justice Act [7][6]. This invalidated most, but not all, of the charges against him; but the outcome was that extradition could proceed.

In April 1999, former UK Prime Minister Margaret Thatcher and former US President George H. W. Bush called upon the British government to release Augusto Pinochet [8][9]. They urged that Pinochet be allowed to return to his homeland rather than be forced to go to Spain. On the other hand, United Nations High Commissioner of Human Rights, Mary Robinson, hailed the Lords' ruling, declaring that it was a clear endorsement that torture is an international crime subject to universal jurisdiction [7]. Furthermore, Amnesty International and the Medical Foundation for the Care of Victims of Torture demanded his extradition to Spain [10]. Finally, in protest against Spain's action, Chile withdrew for a time its ambassador from the Iberian Peninsula [11].

There were then questions about Pinochet's allegedly fragile health. After medical tests, the Home Secretary Jack Straw ruled in January 2000 that he should not be extradited. This triggered protests from human rights NGOs, and led in January 2000 the Belgian government, along with six human rights groups (including Amnesty International), to depose a complaint against Jack Straw's decision before the International Court of Justice (ICJ) [12]. Belgium, as well as France and Switzerland, had deposed extradition requests in the wake of Spain's demand [12].

Despite the protests of legal and medical experts from several countries, Straw finally ruled, in March 2000, to set free Pinochet and authorize his free return to Chile [13]. Henceforth, on 3 March 2000, Pinochet returned to Chile. His first act when landing in Santiago de Chile's airport was to triumphally stand up from his chair to acclaim his supporters [14][15]. He was first greeted by his successor as head of the Chilean armed forces, General Ricardo Izurieta [15]. President Ricardo Lagos, who had just sworn in on March 11, said the retired general's televised arrival had damaged the image of Chile, while thousands demonstrated against him.[16]

[edit] The principle of universal jurisdiction

Further information: Universal jurisdiction

Despite his release on grounds of ill-health, the unprecedented detention of Pinochet in a foreign country for crimes against humanity committed in his own country, without a warrant or request for extradition from his own country, marks a watershed in international law. Some scholars consider it one of the most important events in judicial history since the Nuremberg trials of Nazi war criminals.

Spanish judge Baltasar Garzón's case was largely founded on the principle of universal jurisdiction—that certain crimes are so egregious that they constitute crimes against humanity and can therefore be prosecuted in any court in the world. The British House of Lords ruled that Pinochet had no right to immunity from prosecution as a former head of state, and could be put on trial. [17] In Spain, the Court of Appeal of the Audiencia Nacional affirmed Spanish jurisdiction over Argentine and Chilean cases, declaring that domestic amnesty laws (in the case of Chile, the 1978 amnesty law passed by Pinochet's regime) could not bind the Spanish courts [6]. Both for matters concerning the "Dirty War" in Argentina and for Chile, they characterized the crimes as genocides [6]. However, both the Spanish and British decision did not rely on international law, but on domestic legislation: "They talked about universal jurisdiction, but grounded their decision in domestic statutory law. [6]"

[edit] Prosecution in Chile

[edit] From March 2000 to May 2004

In March 2000, after Pinochet's return, the Congress approved a constitutional amendment creating the status of "ex-president," which granted them immunity from prosecution and guaranteed them a financial allowance. In exchange, it required them to resign their seat of senator-for-life. 111 legislators voted for, and 29 (mostly, if not all, from the Left) against [18].

Despite this political move, on 23 May 2000 , the Court of Appeal of Santiago lifted Pinochet's parliamentary immunity concerning the Caravan of Death case. This was confirmed by the Supreme Court of Chile, which voted on 8 August 2000, by 14 votes against 6, to strip Pinochet of his parliamentary immunity. On 1st December, 2000, the judge Juan Guzmán Tapia indicted Pinochet for the "kidnapping" of 75 opponents in the Caravan of Death case — Guzmán advanced the charge of "kidnapping" as they were officially "disappeared:" even though they were all most likely dead, the absence of their corpses made any charge of "homicide" difficult [19]. However, as soon as 11 December, 2000, the procedure was suspended by the Court of Appeal of Santiago for medical motives. Beside the Caravan of Death, 177 other complaints had been filed against him [19].

In January 2001, the physicians stated that Pinochet was suffering from a "light dementia", which did not impede him from being heard by the Chilean justice [20]. Therefore, judge Guzmán ordered his arrest end of January 2001 [21]. However, the judiciary procedures were again suspended on 9 July, 2001 because of alleged health reasons.

In July 2002, the Supreme Court dismissed Pinochet's indictment in the various cases, for medical reasons (an alleged "vascular dementia"). The same year, the prosecuting attorney Hugo Guttierez, in charge of the Caravan of Death case, declared that "Our country has the degree of justice that the political transition permits us to have.[22]"

Shortly after the verdict, Pinochet resigned from the Senate, thus benefitting from the 2000 Constitutional amendment granting him a certain immunity from prosecution. Thereafter, he lived quietly, rarely made public appearances and was notably absent from the events marking the 30th commemorations of the coup on 11 September 2003.

[edit] Revocation of Pinochet's dementia status and house arrest (2004)

Almost two years after his resignation, on 28 May 2004, the Court of Appeals voted 14 to 9 to revoke Pinochet's dementia status and, consequently, his immunity from prosecution. In arguing their case, the prosecution presented a recent television interview Pinochet had given for a Miami-based television network. The judges found that the interview raised doubts about the mental incapacity of Pinochet.

On 26 August 2004, in a 9 to 8 vote, the Supreme Court confirmed the decision that Pinochet should lose his senatorial immunity from prosecution.

On 2 December 2004, the Santiago Appeals Court stripped Pinochet of immunity from prosecution over the 1974 assassination of General Carlos Prats, his predecessor as Army Commander-in-Chief, who was killed by a car bomb during exile in Argentina.

On 13 December 2004, Judge Juan Guzmán Tapia placed Pinochet under house arrest and indicted him over the disappearance of nine opposition activists and the killing of one of them during his regime.

[edit] 2005 (Affirmation of Pinochet's immunity in the Carlos Prats Case and stripping of his immunity in the Operation Colombo case)

However, the Supreme Court reversed the Appeals Court ruling in the Carlos Prats case on 24 March 2005, and thereby affirmed Pinochet's immunity. But in the Operation Colombo case involving the killing of 119 dissidents, the Supreme Court decided on 14 September 2005 to strip Pinochet of his immunity [23].

The following day he was acquitted of the human rights case due to his ill health. Late in November 2005, he was again deemed fit to stand trial by the Chilean Supreme Court and was indicted on human rights, for the disappearance of six dissidents arrested by Chile's security services in late 1974, and again placed under house arrest, on the eve of his 90th birthday.

[edit] 2006

In July 2006, the Supreme Court upheld a January 2006 judgment by the Court of Appeal of Santiago, which argued that the 2002 Supreme Court's ruling stating that Pinochet could not be prosecuted in the Caravan of Death case did not apply itself to two of its victims, former bodyguards of Allende [24]. [25].

On 9 September 2006, Pinochet was stripped of his immunity by the Supreme Court[26]. Judge Alejandro Madrid was thus able to indict him for the kidnappings and tortures at Villa Grimaldi[26].

Furthermore, Pinochet was indicted in October 2006 for the assassination, in 1995, of the DINA biochemist Eugenio Berrios (himself involved in the Letelier case) [27].

On 30 October 2006, Pinochet was charged with 36 counts of kidnapping, 23 counts of torture, and one of murder for the torture and disappearance of opponents of his regime at Villa Grimaldi. On 28 November 2006, judge Víctor Montiglio, charged of the Caravan of Death case, ordered Pinochet's house arrest [1]. However, Pinochet died a few days later, on 10 December 2006, without having been convicted of any crimes committed during his dictatorship.

[edit] Tax fraud and foreign bank accounts

The U.S. Senate Permanent Subcommittee on Investigations released a report about Riggs Bank on July 15, 2004, which had solicited Pinochet and controlled between USD $4 million and $8 million of his assets. According to the report, Riggs participated in money laundering for Pinochet, setting up offshore shell corporations (referring to Pinochet as only "a former public official"), and hiding his accounts from regulatory agencies. The report said the violations were "symptomatic of uneven and, at times, ineffective enforcement by all federal bank regulators, of bank compliance with their anti-money-laundering obligations." In 2006, Pinochet's total wealth was estimated at $28 million or more [28].

Five days later, a Chilean court formally opened an investigation into Pinochet's finances for the first time, on allegations of fraud, misappropriation of funds, and bribery. Then, a few hours later, the state prosecutor, Chile's State Defense Council (Consejo de Defensa del Estado), presented a second request for the same judge to investigate Pinochet's assets, but without directly accusing him of crimes. On 1 October 2004, Chile's Internal Revenue Service ("Servicio de Impuestos Internos") filed a lawsuit against Pinochet, accusing him of fraud and tax evasion, for the amount of USD $3.6 million in investment accounts at Riggs between 1996 and 2002. Furthermore, a lawsuit against the Riggs Bank and Joe L. Allbritton, chief executive of the bank until 2001, was closed after the Riggs agreed in February 2005 to pay $9 million to Pinochet's victims in compensation of the money-laundering activity with Pinochet [29].

Pinochet could have faced in Chile fines totaling 300 percent of the amount owed, and prison time, if convicted before his death. Aside from the legal ramifications, this evidence of financial impropiety severely embarrassed Pinochet. According to the State Defense Council, his hidden assets could never have been acquired solely on the basis of his salary as President, Chief of the Armed Forces, and Life Senator.

[edit] BAE Systems

In September 2005, a joint-investigation by The Guardian and La Tercera revealed that the British arms firms BAE Systems had been identified as paying more than £1m to Pinochet, through a front company in the British Virgin Islands, which BAE has used to channel commission on arms deals [30]. The payments began in 1997 and lasted until 2004 [30][31]. BAE attempted conclude a deal in the 1990s to sell Chile a rocket system and are now trying to sell it naval electronics [30]. The Chilean Army reportedly spent $60 million on the Rayo rocket system on a joint-venture with BAE Systems starting in 1994, before abandoning the project in 2003 [31]. Since 2001, British legislation outlaws corruption of foreign public officials (part 12 of the Anti-terrorism, Crime and Security Act 2001) [31].

[edit] Charges against Pinochet and relatives

In November 2005, Pinochet was deemed fit to stand trial by the Chilean Supreme Court and was indicted and put under house arrest on tax fraud and passport forgery charges but was released on bail; however, he remained under house arrest due to unrelated human rights charges.

This tax fraud filing, related to Pinochet's and his family secret bank accounts in United States and in Caraïbs islands, for an amount of 27 million dollars, shocked the Pinochetist sector of the Chilean public opinion more than the accusations of human rights abuses. Ninety percent of these funds would have been raised between 1990 and 1998, when Pinochet was Commander-in-Chief of the Army, and would essentially have come from weapons traffic (when purchasing Belgian 'Mirage' air-fighters in 1994, Dutch 'Léopard' tanks, Swiss 'Mowag' tanks or by illegal sales of weapons to Croatia, in the middle of the Balkans war — the later case has been connected by the Chilean justice with the assassination of Colonel Gerardo Huber in 1992) General Pinochet was reckoned to owe to the Chilean tax administration a total of $16.5 million.

In that case Pinochet's immunity was set off by the Appeal Court of Santiago, and this was confirmed by the Supreme Court on 19 October 2005. The judiciary procedure could eventually have lead to a trial for Pinochet, as well as for his wife Lucia Hiriart and one of his sons, Marco Antonio Pinochet, sued for complicity. Judge Juan Guzmán Tapia remained however, at the time, skeptic on the probability of a trial, either for human rights violations or for fiscal fraud. However, some medical examinations reported that the physical and mental health condition of the former dictator would have allowed him to be judged. On 23 November 2005, judge Carlos Cerda charged Pinochet for fiscal fraud and ordered his arrest. Pinochet was freed under caution, as following the judgment minutes, "his freedom did not represent a danger for the security of the society." It was the fourth time in seven years that Augusto Pinochet was indicted and charged for illegal behavior.

On 23 February 2006 Augusto Pinochet's children Lucía, Jacqueline, Marco Antonio, Jacqueline and Verónica Pinochet; Augusto Pinochet's wife, Lucia Hiriart; a daughter-in-law; and Pinochet's personal secretary were indicted on charges of tax fraud, including failing to declare bank accounts overseas, and using false passports. Lucía flew to the US, but was detained and returned to Argentina, her country of departure, after attempting unsuccessfully to claim political asylum [32]. Pinochet's five children, his wife Lucia Hiriart, and 17 other persons (including two generals, one of his ex-lawyer and his ex-secretary) were arrested in October 2007 on charges of embezzlement and use of false passports in the frame of the Riggs affair. They are accused of having illegally transferred $27m (£13.2m) to foreign bank accounts during Pinochet's rule [33][34].

[edit] Allegations during Pinochet's last days

In 2006, General Manuel Contreras, head of the Chilean secret police DINA under Pinochet, alleged in testimony sent to Judge Claudio Pavez (in charge of the Huber case) that Pinochet and his son Marco Antonio Pinochet were involved in the clandestine production of chemical and biological weapons, and the producing (under Eugenio Berríos's direction) sale and trafficking of cocaine [35]. These allegations were investigated and later dismissed by the Chilean courts .

Fifteen years of investigation have also revealed that Pinochet was at the center of an illegal arms trade organized around the FAMAE (Factories and Arsenals of the Army of Chile), receiving money through various offshores and front companies, including the Banco Coutts International in Miami [36]. One of the deal notably included transfert of 370 tons of weapons to Croatia when the latter was under UN embargo because of the war against Serbia [36]. Another one involved a 1995 arms contract with Ecuador which gave rise to kickbacks, some of which ended in Pinochet's bank accounts abroad [37].

[edit] Death

On 10 December 2006, Augusto Pinochet died of heart failure and pulmonary edema, surrounded by family members, at the Military Hospital in Vitacura at 14:15 local time (17:15 UTC).

[edit] See also

[edit] References

  1. ^ a b Procesan a Pinochet y ordenan su arresto por los secuestros y homicidios de la "Caravana de la Muerte", 20minutos, 28 November 2006.
  2. ^ a b Más de 300 querellas abiertas, El Periódico, URL accessed on 10 September 2007 (Spanish)
  3. ^ Descubren 9.000 kilos de oro ocultados por Pinochet en un banco de Hong Kong, EFE, published by 20 Minutos, 25 October 2006 (Spanish)
  4. ^ ¿En qué negocios andaba Pinochet en Londres?. El secreto mundo de los armamentos.", Punto Final, 18 December 1998 (Spanish)
  5. ^ The judgements of the House of Lords and the other British Courts which considered Pinochet's case can be found on the British and Irish Legal Information Institute website.
  6. ^ a b c d e Naomi Roht-Arriaza (Professor of Law, University of California, Hastings College of Law), The Pinochet Precedent and Universal Jurisdiction in New England Law Review Vol. 35:2 (9 pages)
  7. ^ a b Straw considers Pinochet case, BBC, 25 March 1999 (English)
  8. ^ Thatcher pleads Pinochet's case, BBC, October 6, 1999 (English)
  9. ^ Former U.S. President Bush urges Pinochet release, CNN, April 12, 1999 (English)
  10. ^ Pinochet must go to Spain, says Amnesty, BBC, January 21, 1999 (English)
  11. ^ Talks set to ease Pinochet rift, BBC, 20 June 2000 (English)
  12. ^ a b Belgium begins Pinochet challenge, BBC, 25 January 2000 (English)
  13. ^ Pinochet set free, BBC, 2 March 2000 (English)
  14. ^ Alex Bellos and Jonathan Franklin, Pinochet receives a hero's welcome on his return, The Guardian, 4 March, 2000 (English)
  15. ^ a b Pinochet arrives in Chile, BBC, 3 March 2000 (English)
  16. ^ Thousands march against Pinochet, BBC, March 4, 2000
  17. ^ The Ripple Effect of the Pinochet Case, Global policy.org, 2004 (English)
  18. ^ Chile offers Pinochet new immunity, BBC, 25 March 2000 (English)
  19. ^ a b Pinochet charged with kidnapping, BBC, 1st December 2000 (English)
  20. ^ Pinochet 'fit enough' for trial, BBC, 16 January 2001 (English)
  21. ^ Pinochet arrest ordered, BBC, 30 January 2001 (English)
  22. ^ "The Appeals Court Ruling Is Negotiated Out for Pinochet", Interview with Attorney Hugo Gutierrez, by Memoria y Justicia, February 21, 2002 (English)
  23. ^ Court strips Pinochet of immunity, BBC, 14 September 2005 (English)
  24. ^ Chile high court allows Pinochet 'Caravan of Death' case to proceed, July 17, 2006 (English)
  25. ^ Chile court upholds Pinochet bail in one case, removes immunity in another, January 11, 2006 (English)
  26. ^ a b Court 'lifts Pinochet immunity', BBC, September 8, 2006.
  27. ^ Levée de l'immunité de Pinochet pour le meurtre d'un chimiste, news agency cable, 12 October 2006 (French)
  28. ^ Larry Rohter, Colonel's Death Gives Clues to Pinochet Arms Deals, The New York Times, 19 June 2006 (English)
  29. ^ Terence O'Hara, Allbrittons, Riggs to Pay Victims Of Pinochet, The Washington Post, 25 February 2005 (English)
  30. ^ a b c David Leigh and Rob Evans, Revealed: BAE's secret £1m to Pinochet, The Guardian, 15 September 2005 (English)
  31. ^ a b c David Leigh, Jonathan Franklin and Rob Evans, Detective story that linked £1m Pinochet cash to BAE, The Guardian, 15 September 2005 (English)
  32. ^ U.S. sends back Pinochet daughter, CNN, January 18, 2006 (English)
  33. ^ Pinochet family arrested in Chile, BBC, 4 October 2007 (English)
  34. ^ Cobertura Especial: Detienen a familia y principales colaboradores de Pinochet, La Tercera, 4 October 2007 (Spanish)
  35. ^ Jonathan Franklin, Pinochet 'sold cocaine to Europe and US', The Guardian, July 11, 2006 (English)
  36. ^ a b Andrea Chaparro Solís, Generales (R) y civiles de Famae procesados en caso armas a Croacia, La Nación, 13 June 2006 (Spanish)
  37. ^ Andrea Chaparro Solís, Consejo de Defensa del Estado se hace querellante en caso armas a Ecuador, La Nación, 5 June 2006 (Spanish)

[edit] External links

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