RIGHTS: Pinochet Defence Inadvertently Aids Spanish Judge

By Tito Drago Reprint | | Print |

Tito Drago

MADRID, Feb 10 2000 (IPS) - Spanish judge Baltasar Garzón is wielding the actions of Augusto Pinochet’s defence lawyers as an argument for Spain to pursue extradition proceedings in London and to prevent the former Chilean dictator’s release.

Pinochet has been under house arrest in a mansion outside the British capital since October 1998, when he was detained on a warrant issued by Garzón, who requested the former dictator’s extradition to Spain to face trial for crimes against humanity committed under his regime (1973-1990).

The Spanish government, meanwhile, has reiterated that it would not appeal British Home Secretary Jack Straw’s possible decision to release Pinochet because such a ruling would be a political – not a judicial – act.

Straw stated last month, after reviewing the former dictator’s medical reports, that he was “inclined” to release the 84-year- old for humanitarian reasons.

Spain’s foreign minister, Abel Matutes, reaffirmed his government’s position Thursday, citing the need to maintain good relations with Chile and to encourage and support “progress towards democracy” throughout Latin America.

But Garzón sent Matutes an official letter (to which IPS was granted access) Thursday, pointing out that the extradition trial will remain open in Great Britain, regardless of Straw’s decision.

He affirmed that the legal proceedings remain on course and will continue Mar 20 in the British House of Lords, where the officials are to deliberate on the motion presented by Pinochet’s defence lawyers appealing the court’s decision in favour of extradition.

Pinochet’s lawyers originally presented the appeal before doctors had performed the medical exam that led Straw to consider releasing the accused.

Because the former dictator’s lawyers have not withdrawn the appeal, Garzón asserts, legal proceedings remain open in Britain and, as such, the Spanish foreign ministry must forward the instructions the judge intended for his representatives in London, the lawyers of the British Crown Prosecution Service.

Matutes instructed the Crown lawyers against acting upon the challenge against Pinochet’s potential release filed in London by the Belgian government and six human rights organisations. The foreign minister also refused to forward Garzón’s instructions to London in which the judge orders the lawyers to file a challenge.

The High Court of London ruled Tuesday that any decision by Straw regarding Pinochet’s release is a legal action and is therefore subject to appeal, and heard the Belgian and human rights organisations’ arguments, though such a motion by the Spanish judge was notably absent.

Joan Garcés, lawyer for the individuals and families who accuse Pinochet of human rights crimes, backed Garzón’s arguments Thursday as he explained the criminal charges he has filed against Matutes. “The accused (Pinochet) has not withdrawn his appeal against the sentence” handed down in London Oct 1, 1999 that approved his extradition to Spain.

Garcés said Matutes’s statements affirming he would not appeal Straw’s decision were made “against all evidence arising from the events taking place in London and from the trial proceedings.”

Matutes has said that if the Spanish government were to change its position now it would be subject to international ridicule and would seriously jeopardise its relations with Chile.

But attorney Garcés emphasised that the European Treaty on Extradition, signed by both Spain and Great Britain, establishes that the governments are mere channels for transmitting a judge’s orders.

The treaty states that relevant documents may be sent by telefax and that each State will designate a central authority entrusted with transmitting and receiving the requests for extradition and their supporting documents. In Spain’s case, the designated authority is the Justice Ministry.

The European Treaty on Extradition determines that the judge’s resolutions requesting extraditions “shall be filed through diplomatic channels.”

According to Garcés, the agencies of the government’s Executive branch, such as the Justice and Foreign Affairs ministries, “are mere couriers of the judgeship’s resolutions that direct the institution of international judicial assistance, that is, extradition.”

Furthermore, the treaty “does not include an individual’s state of health among reasons that permit the denial of extradition.” Such a clause was proposed by France during the drafting of the treaty but was rejected, Garcés pointed out.

For these reasons, and after demonstrating that Pinochet’s extraditions proceedings remain legally active both in Spain and Great Britain, the events driven by Matutes are further expression of his breach of the Penal Code, concluded Garcés.