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Thursday, April 15, 1999 Published at 17:20 GMT 18:20 UK


Q & A: The next step for Pinochet

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BBC Legal Affairs Correspondent Joshua Rozenberg answers questions on Home Secretary Jack Straw's decision to allow Spain's extradition proceedings against General Augusto Pinochet to go ahead.

This is the second time Jack Straw has made such a ruling. How is it different from last time?

The pinochet File
Apart from the charges, the wording is almost identical. One phrase has been added relating to the decision: the Authority to Proceed. It says Jack Straw "was satisfied that he took this decision with an open mind". The home secretary also seeks to protect himself from potential court challenges by saying there are matters he has considered which can be explored more closely during subsequent legal proceedings.

On what criteria has Mr Straw based his decision this time?

He has taken into account the House of Lords ruling made on 24 March this year. The Law Lords ruled that General Pinochet could only be extradited in respect of offences of torture and conspiracy to torture which are alleged to have taken place after 8 December 1988. Mr Straw's earlier ruling had also allowed extradition to go ahead on charges of attempted murder, conspiracy to murder, hostage taking and conspiracy to take hostages. General Pinochet no longer faces extradition on these charges. Mr Straw does not accept a claim from General Pinochet that he is immune from extradition where the alleged torture is not widespread or systematic.

What avenues are open to General Pinochet to challenge this decision?

He can challenge it in the High Court. The courts can overturn it if they decide that the home secretary has not acted fairly. Although the judges will not substitute their own decision for his, they may grant judicial review if the minister has not taken into account the factors he should have considered, or if he has based his decision on irrelevant considerations.

What is your best guess as to the most likely outcome to this whole affair?

It will be many months before the legal process is over. Even if the courts allow extradition to go ahead, Mr Straw still has the power to block it at the last moment. He has promised to take account of any further representations from General Pinochet before making up his mind.

Under what circumstances might General Pinochet be allowed to go home?

If the Bow Street magistrate is satisfied that the Authority to Proceed issued by Jack Straw relates to an extradition crime and none of the prohibitions on return applies in this case, he must commit General Pinochet to await Mr Straw's final decision on extradition. General Pinochet could then apply for an order of habeas corpus, ordering the magistrate to set him free. If all legal challenges fail, the home secretary has the last word.

Human rights activists have welcomed the decision so is it a significant moment in terms of international law?

The most significant moments in this case were when the Law Lords rejected General Pinochet's claims of immunity from extradition. But the House of Lords rulings would have had no effect if Jack Straw had refused to give the go-ahead for extradition proceedings.

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