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Wednesday, November 25, 1998 Published at 18:33 GMT


Q&A: What's next for Pinochet?

[ image:  ]
From: Joshua Rozenberg, BBC Legal Affairs Correspondent.

To: BBC News Online

Subject: The House of Lords ruling on General Pinochet

Why did the House of Lords rule that General Pinochet does not have immunity from prosecution?

The pinochet File
A majority of the Law Lords decided that General Pinochet, as a former head of state, did not have immunity from prosecution for genocide, torture and hostage taking. Such immunity is only available for what are considered to be the official duties of a head of state. But Lord Steyn said the crimes General Pinochet was accused of could not be considered part of his official duties. "Why should what was allegedly done in secret in the torture chambers of Santiago on the orders of General Pinochet be regarded as official acts?" he asked. He said that if the General had immunity for such crimes then it followed that Hitler's final solution - the extermination of six million Jews - would have been an official act and also attracted immunity. Lord Nicholls said international law had made it plain that conduct such as torture was not acceptable on the part of anyone, including heads of state. A different conclusion would make a mockery of international law.

What did that mean?

The Home Secretary Jack Straw has to decide whether to issue what is called an 'authority to proceed' under the Extradition Act 1989. Unless he does so, the case will go no further.

What criteria will Mr Straw base his decision on?

Mr Straw has made it clear he will act in a 'quasi-judicial' manner - as if he were a judge. That means he will have to weigh up the competing arguments before reaching his decision. He must take account of all the representations he receives if his decision is not to be overturned by the courts. Mr Straw has said he will not be consulting cabinet colleagues.

The section of the Extradition Act dealing with granting the authority to proceed does not specify any criteria on which the home secretary must base his decision. That leaves the home secretary with a very broad discretion. However, Mr Straw listed some of the issues he would consider when he answered a parliamentary question on 22 October. These were:

  • Whether the offences are extradition crimes.
  • Whether the request is properly authenticated.
  • Whether the offences are of a political character.
  • Are there any compassionate circumstances to take into account.

    It follows from the Law Lords' decision that at least some of the offences alleged are extradition crimes. It is likely that the Spanish authorities will have made sure their formal request was properly authenticated. It was never argued that the offences were of a political character and the Law Lords rejected the claim that they were within the official duties of a head of state.

    The question of compassion is a difficult one. But it is worth noting that that the Crown Prosecution Service works on the basis that the more serious the offence, the more likely it is that a prosecution will be needed in the public interest. Prosecutors also take less account of a defendant's age if he is facing serious charges, such as murder.

    Is it just a legal decision or does politics come into it?

    In the parliamentary answer Mr Straw gave on 22 October, he added: 'this will not be a political decision: I am exercising my statutory responsibilities'. On the other hand, if parliament has given a discretion to a politician it can hardly expect that politician to ignore political issues.

    At the end of the extradition process Mr Straw has to decide whether someone whose extradition is sought should be sent to the country which wants to try him. On this issue, Lord Nicholls said: 'Arguments about the effect on this country's diplomatic relations with Chile if extradition were allowed to proceed, or with Spain if refused, are not matters for the court. These are, par excellence, political matters for consideration by the secretary of state in the exercise of his discretion under section 12 of the Extradition Act.'

    Is it just the Spanish request that is being dealt with here - other countries have lodged similar charges?

    The Spanish request is further advanced than the others. If others are received, no doubt they would be considered.

    What happens if Mr Straw decides to proceed with extradition next week?

    The will be a hearing at Bow Street court and perhaps further appeals. If the courts grant extradition, the home secretary will have the last word. Mr Straw can't send General Pinochet to Spain if the courts refuse to extradite him. But even if the courts allow extradition, Mr Straw can refuse to send him for trial in Spain.

    How long could all this go on?

    It could be months. Much depends on whether General Pinochet decides to challenge the legal process at every stage.

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