1. Pinochet Case Eiman Kheir Jamola Khusanjanova

2. Outline  Introduction  Background Information - theoretical background; - Augusto Pinochet;  Pinochet case - phase 1 - phase 2 - phase 3

3. IntroductionBackgroundPinochet IIIPinochet IPinochet IIConclusionExtradition Issues of the case  Whether British Courts have Jurisdiction to try Former Chilean President  Whether immunity extends to acts performed in exercise of functions as head of state.  Whether governmental acts of torture are attributable to functions of head of state  Whether former head of state entitled to immunity ‘ratione materiae’ in relation to acts of torture

4. IntroductionBackgroundPinochet IIIPinochet IPinochet IIConclusionExtradition Augusto Pinochet President of Chile(1973- 1990). Coup d’etat Authorized/permitted Torture, Disappearance and hostage taking of anyone against his regime. Magistrate Báltazar Garzón Various allegations against Pinochet during his rule Evidence of Killing and Torture of Spanish citizens

5. IntroductionBackgroundPinochet IIIPinochet IPinochet IIConclusionExtradition Immunity State (Sovereign) immunity:  In international law a state is immune before the courts of another state.  This includes holders of high-ranking office in a state (such as heads of state or heads of government), and diplomatic and consular agents

6. IntroductionBackgroundPinochet IIIPinochet IPinochet IIConclusionExtradition Distinctions in Immunity “Ratione Materiae”- Functional Immunity  Immunity covers activities of any state official carried out in their official capacity.  These activities are attributable to the state, and the individual cannot be held accountable for them, even after they leaves office “ Ratione Personae”- Personal Immunity Immunities attach to the particular status of the holder of these immunities, e.g. head of a diplomatic mission. They cover all activities carried out by the holder, but cease to apply when that particular status is concluded.

7. IntroductionBackgroundPinochet IIIPinochet IPinochet IIConclusionExtradition Torture Definition  “ Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as [obtaining information or a confession, intimidation or coercion, or discrimination]” The Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or punishment (1987)  No person is immune  The convention entrenches the principle of universal jurisdiction

8. Two visions Old  Vienna convention on diplomatic Relations (1961)  Heads of State Immune New  Torture Convention (1987)  Rome Statute (1998)  Heads of State not immune to crimes under int’l law

9. IntroductionBackgroundPinochet IIIPinochet IPinochet IIConclusionExtradition  A formal process by which an individual is delivered from the country where he/she is located (requested country), to the requesting country in order to face prosecution, or if already convicted, to serve a sentence.  The process is regulated by treaty.  Condition: Double criminality i.e. It should constitute a crime in both states (1)Requesting country (Spain); (2)Requested Country (UK) (3)The individual subject of the proceedings (Pinochet) (4)Extradition act 1989

10. IntroductionBackgroundPinochet IIIPinochet IPinochet IIConclusionExtradition Two Warrants issued (to extradite Pinochet)  Murder of Spanish citizens in Chile  Alleged Crimes of Torture B ritish courts have no jurisdiction to extradite  Acts committed before UK adopted the extradition Act (1989) Immune Under Vienna Convention Acts committed as head of state Extradition Crime British Courts have jurisdiction. Extradition act is retroactive. Murder: Doesn’t satisfy condition of double Criminality Immunity Under Vienna convention- Head of state Immune

11. IntroductionBackgroundPinochet IIIPinochet IPinochet IIConclusionExtradition House of Lords - 5 judges (3:2) Appeal by Spanish Magistrate “Garzon” on the proper interpretation of Immunity Warrant (to extradite Pinochet) : Alleged Crimes of Torture British courts have no jurisdiction to extradite  Acts committed before UK adopted the extradition Act (1989) Immune Under Vienna Convention Acts committed as head of state Extradition Crime British Courts have jurisdiction. Extradition act is retroactive Immunity Vienna Convention Vs UN convention against Torture & Rome Statue Torture universally condemned act Function of states cannot include torture

12. IntroductionBackgroundPinochet IIIPinochet IPinochet IIConclusionExtradition House of Lords II- 7 judges (6:1) Appearance of bias from deciding Judge on House of lords..  Whether he has immunity in respect of acts performed in exercise of functions as head of state  UN Convention Against Torture  reject Augusto Pinochet's claim to immunity as a former head of state  Whether governmental acts of torture attributable to functions of head of state  UN Convention Against Torture  Torture cannot be a part of the function of a head of state under international law  Whether former head of state entitled to immunity ratione materiae in relation to acts of torture  International crimes and extra-territorial jurisdiction, UN Convention Against Torture  former head of state is not entitled to immunity ratione materiae in relation to acts of torture Ruled that Pinochet can be extradited to Spain Committed with 35 Charges (34 of torture, and 1 of conspiracy to commit torture.

13. IntroductionBackgroundPinochet IIIPinochet IPinochet IIExtraditionConclusion  Lord Hoffman - Amnesty international  Magistrate Báltazar Garzón filed extra charges of torture committed after 1988  Not Immune to torture crimes - Universal Jurisdiction

14. IntroductionBackgroundPinochet IIIPinochet IPinochet IIExtraditionConclusion Significance of this case  Help institutionalize norms that had previously existed primarily on paper  Answered urgent questions involving the validity of extradition request and conditions of diplomatic immunity  Pinochet case has broad significance for the prosecution of human rights cases and in its potential to shape state behavior.  The case was a watershed event in judicial history, as it was the first time that a former government head was arrested on the principle of universal jurisdictionwatershed eventuniversal jurisdiction