The New York Times

Monday, February 1, 2000

Britain's High Court Supports Move to Release Pinochet

By WARREN HOGE

LONDON, Jan. 31 -- A High Court judge issued a tough-worded judgment today supporting the British government's decision to release Gen. Augusto Pinochet and let him return home to Chile, but Belgium held up any final action by lodging an appeal against the ruling.

Home Secretary Jack Straw had said on Jan. 11 that he was "minded" -- inclined -- to set the 84-year-old former Chilean dictator free immediately because of his deteriorating health but would await the outcome of any legal objections before issuing a definitive order.

In today's ruling, Judge Maurice Kay turned down appeals from six human rights groups and the Belgian government contesting the British government's finding that General Pinochet is medically unfit to be extradicted to Spain to stand trial on torture charges.

Hopes of Pinochet supporters that Judge Kay's verdict constituted the end of legal moves in the 15-month-old case were dashed by Belgium, which filed its appeal this afternoon. It will be heard by a panel of three High Court judges on Monday and Tuesday of next week. Amnesty International and the five other rights groups have until noon Tuesday to file any appeals of their own.

The Home Office withheld all comment on today's actions.

Judge Kay was emphatic in rejecting the arguments presented in two days of hearings last week, saying they were "inappropriate" and "utterly without merit." The groups had jointly protested Mr. Straw's refusal to make public records of a medical examination of General Pinochet conducted by four British doctors that was the basis for the findings on the general's infirm physical state.

Judge Kay found that Mr. Straw acted "lawfully, fairly and rationally" in not disclosing the medical documents. Mr. Straw had argued that to do so would violate a pledge of doctor-patient confidentiality made to the general before the Jan. 5 examination. "In legal, if somewhat peremptory terms," the judge said of the complainants' request, "it is none of their business."

The judge added that he was "conscious that my decision is unavoidably adverse to, on the one hand, people who have suffered greatly in Chile's recent history, and, in the case of Belgium, to a friendly state and its judicial authorities."

Belgium, France and Switzerland had joined Spain in seeking General Pinochet's extradition on behalf of residents who said they suffered under general's military rule.

General Pinochet's pursuers denounced today's ruling but did so in a way that suggested they realized chances of judicial relief might now be slim. Reed Brody, advocacy director of Human Rights Watch, said: "We are dismayed by today's decision, which is a setback for Pinochet's thousands of victims in their quest for justice. It is a shame that the attempt to prosecute General Pinochet for the worst international crimes may be halted on the basis of secret medical evidence examined behind closed doors."

Whatever its ultimate conclusion, the case has already resulted in a fundamental change in concepts of international law to allow the prosecution of dictators and leaders of repressive regimes by courts in countries where the alleged abuses did not occur.

This came about when Britain's highest court, the Law Lords of the House of Lords, turned aside the general's claim that, under the principle of sovereign immunity, he could not be tried for acts committed while he was Chile's head of state, from 1973 to 1990.

General Pinochet has been under house arrest in England for more than 15 months while complicated legal moves unfolded around a Spanish judge's request that he be extradited to Madrid to stand trial on charges of genocide, torture, kidnapping and murder in connection with the disappearance of more than 3,000 people in the years after he seized power in the 1973 coup that ousted President Salvador Allende.

The judge, Baltasar Garz n, considered something of a maverick in the Spanish judiciary, had gathered his evidence during an investigation into the so-called dirty wars in Latin America in the 1970's.

On Oct. 16, 1998, the general was arrested as he lay in a London clinic recuperating from back surgery.

Twelve days later, General Pinochet won his first legal battle in a ruling by the High Court that upheld his claim to sovereign immunity. But in the judgment that was to create the case's legacy, on Nov. 25, 1998, the Law Lords overturned that decision, saying that being head of state did not excuse crimes against humanity.

The case returned to the House of Lords after one of the original judges was found to have had an association with Amnesty International, a party to the case. But the second Lords' decision, on March 24, 1999, was even more assertive on the principle than the first one, though it drastically reduced the number of charges and narrowed their scope to torture and conspiracy to torture.

The case then moved on to the validity of the actual extradition order itself, which was upheld by a London magistrate last October and is under an appeal from General Pinochet's lawyers that is likely to become moot because of Mr. Straw's expected intervention.

In General Pinochet's one court appearance, on Dec. 11, 1998, he maintained the defiant attitude he adopted from the beginning, saying that he did not recognize the jurisdiction of any court outside Chile to try him and that he was innocent of "all the lies of Spain."

Over the 15 months, there have been boisterous gatherings outside the House of Lords and the downtown magistrate's court, with supporters and opponents behind barricades angrily facing down one another.