By Tito Drago
MADRID, Jan 14 2000 (IPS)

Judge Baltasar Garzón, author of the petition to extradite Augusto Pinochet to Spain, reclaimed his right Friday to interrogate the former Chilean dictator in London, in the case that British authorities decide to release the elderly former general.

Pinochet has been held under house arrest since Oct 16, 1998, as a result of an international arrest warrant issued by the Spanish judge, and has been subject to extradition proceedings to face trial in Spain for human rights crimes – including torture, deaths and disappearances – committed during his 1973-1990 dictatorship.

But Tuesday, Britain’s Home Officer Jack Straw put his legal authority to use, announcing to the parties in the case his “inclination” to interrupt the extradition process, based on a medical report that purportedly shows the accused is not in condition to face trial, due to his age and failing health.

Straw gave both sides seven days to present their arguments, stressing that they would only be considered if they provided new information. The deadline is next Tuesday, Jan 18.

Spokesman Josep Piqué stated that the Spanish government would forward Garzón’s plea only if it includes new elements for the case.

Garzón turned in his plea Friday to Spain’s Justice Ministry, who passed it on to Foreign Affairs, which must then send it to the embassy in London, where it is to be handed over to British legal authorities.

The Spanish judge begins his arguments underscoring that, in the interest of brevity and “because that is how the Home Office requests it,” he uses only new arguments. This leaves the centre- right government of José María Aznar the choice of complying with its promise or withholding the document for political reasons.

Government sources told IPS that before making a decision, the government would study the Garzón document. If its review is prolonged, the plea may not be delivered within the period set by Straw.

Garzón indicates that his arguments suffer from a fundamental negative element: “The lack of knowledge of the medical report about which one is expected to form an opinion, making the situation somewhat absurd.”

Straw’s decision to withhold the medical report from the parties to the case and from Spanish legal authorities violates basic guarantees, he adds, such as the principle of equal treatment of the defence and the prosecution.

Garzón emphasises, with underscoring and capital letters, that “under no circumstances” should the accused be withdrawn from the legal action for medical reasons, in accordance with Spain’s penal procedures.

The judge requested a report from forensic doctor Angel Canelada, who provided one Thursday which specifies that “despite the patient’s physical ailments, nothing impedes – with the necessary treatment, monitoring and controls – the trial of a person age 84.”

Garzón rejects Straw’s age argument, saying that legal proceedings against octogenarians are not infrequent, and cites several cases, including that of Maurice Papón, an official of the French government of Vichy accused of collaborating with the Nazis in deporting Jews, and the trial of Klaus Barbie, who was head of the Gestapo in Lyon, France.

“In each of these cases, the accused suffered physical ailments, however, the interests of justice were met,” states Garzón.

This interest “includes that of the victims and excludes as repugnant any mention of humanitarian reasons as an argument to avoid penal responsibility for the crimes attributed to the alleged perpetrator.”

Garzón says the confidentiality of a medical report must be respected in function of the interests it protects, and that medical testing imposed by officials in criminal proceedings is not the same as others that are performed for personal reasons.

Later in the document, Garzón points out that on Oct 19, 1998 he officially requested to be present when British authorities took Pinochet’s legal declaration. “After a year and three months, (the request) has not been answered.”

As a result, he now “expressly solicits authorisation for taking the declaration of the accused before the announced decision is made about his eventual release and return to his country.”

But, if that is not enough, Garzón points to the Convention against Torture, under which the extradition procedures are occurring and which Straw seems to assume have concluded. The Convention has additional requirements, says Garzón, such as the obligation to try the accused in the country where he is being held, if extradition is refused.

Garzón writes, “In the case that extradition to Spain is denied, this Court offers all documents and evidentiary elements that apply in this case for the trial of Augusto Pinochet in that country, and to prevent his de facto impunity.”

The judge requests that the British ministry authorise a second medical exam before Straw makes a definitive statement about Pinochet’s release, based on the contents of the first and with the participation of two forensic medical specialists in psychiatry, to be designated by Spain’s legal authorities.

Before concluding his arguments, Garzón, predicting the political stance of his government, says that he would send the arguments to the Foreign Affairs Ministry “so that, in the interest of assisting Justice, it may forward the documents to the appropriate English authorities.”

He closes with a message to the British and Spanish governments: “I thus express my trust and desire that the Spanish government as well as the Home Office value the importance of the imputed events and the need for the (Pinochet) trial.”

Such a trial would be a way “of making the principle of universal justice into realty, by submitting the accused to a fair trial, with all procedural guarantees, including medical, but that also satisfies the legitimate interests of justice for the victims,” states Garzón.

Excerpt: