Special report on the preparation and development of General Augusto Pinochet's detention and Spanish judges' ruling recognizing the principle of universal criminal jurisdiction for domestic courts.
Madrid, November 5, 1998
"May other men overcome this grey and bitter moment in which treason tries to prevail".
Salvador Allende. Santiago de Chile, September 11, 1973.
Due to the rapid succession of events that have followed General Augusto Pinochet's detention and taking into account all the questions that we have been asked from different people and countries, we have decided to make an accurate synthesis of the sequence of these events.
1) General Augusto Pinochet Ugarte's detention took place on October 16, 1998, at 23:30 h., as a consequence of the petition filed by Investigating Court (Juzgado Central de Instrucción - JCI) num. 5 of the National Criminal Court (Audiencia Nacional Española).
This petition was the court's answer to the extended complaint filed on October 15, 1998, by the Human Rights Secretariat of Izquierda Unida (second largest left hand political party in Spain) as Popular Accusation in the case on the crimes committed by the Argentine military juntas.
Once it was confirmed, through Amnesty International London, that Augusto Pinochet was in London and after several days of work, the writing which contained the basis for the Dictator's detention was elaborated. During this preparation period the Human Rights Secretariat of Izquierda Unida, the Salvador Allende Foundation and the Nizkor Team coordinated their work. Only Amnesty International London had knowledge of the work that was been undertaken.
The very first step within this sequence of acts consisted of the simultaneous submission -on October 13, 1998, before investigating courts num. 5 and 6 of the Audiencia Nacional- of a request aimed at interrogating Augusto Pinochet. This request was submitted by the Human Rights Secretariat of Izquierda Unida and the Salvador Allende Foundation.
The detention order filed by the Spanish court before the British authorities has been the object of the British High Court recent decision. This court's ruling of October 28, 1998, declared that Augusto Pinochet Ugarte, given his condition as Head of State when he committed the acts he is accused of, benefits from immunity. This legal norm comes from a law from the 16th century and which was originated in the Peace of Westfalia.
The decision of the British justice is definitively far away from the British doctrine that in 1914 imposed the elimination of the concept of immunity in relation with individuals who were Heads of State. This doctrine was after ratified by Article 7 of the Nuremberg Statute and Article 4 of the Convention on the Prevention and Punishment of the Crime of Genocide, which were both promoted by several countries, among them the United Kigdom. Nowadays this principles have been reafirmed by the European parliaments through the ratification of articles 6 and 7 of the Statutes of the international criminal courts for Rwanda and the former Yugoslavia respectively.
Between November 4th and 9th, the appeal committee of the House of Lords will have the opportunity to give back to the United Kingdom its legal and ethical rationality. Not doing so would be equal to turning back to the most rancid and reactionary absolutist law from the 16th century.2) Once the detention took place a series of legal actions were undertaken by the Prosecutor's Office of the Audiencia Nacional. These appeals against the unconditional provisional imprisonment order and the arrest warrant against Augusto Pinochet provoked an acceleration effect on the Chilean and Argentine cases that were being conducted before the mentioned court.
As a result, on October 20, 1998, the Magistrate in charge of JCI num. 6, Garcia Castellon, who was conducting the case on crimes committed during the Chilean Dictatorship, transferred his case to JCI num. 5, conducted by Magistrate Baltasar Garzon. This signifies that both cases are now unified and belong to the same investigation under JCI num. 5.3) Since JCI num. 5 requested Augusto Pinochet's detention, the Prosecutor's Office of the Audiencia Nacional deployed its appeal-machinery whose main argumentative point consisted of refuting the competence of Spanish courts. Therefore, the Prosecutor's Office interposed five appeals in relation with the legal iniciatives of the Popular Accusation in the Pinochet's case and two more appeals against the extention of the list of indictments in the Argentinean case.
As the line of argument of the Prosecutor's Office was at bottom the same, the Popular Accusations composed of the Human Rights Secretariat of Izquierda Unida and the Salvador Allende Foundation requested on October 22, 1998, the joinder of causes of action.
The Prosecutor's Office even appealed against the competence of the Spanish court in the Chilean case. However, the Criminal Court of the Audiencia Nacional had given positive answer to the competence of the investigating court in charge of this case.
The attorneys' obstructionist attitude goes beyond a mere procedural problem. In Spain the Prosecutor's Office of the Audiencia Nacional has become the only Prosecutor's Office within the European frame that has expressly opposed to Pinochet's prosecution using a line of argument equal to the most irrational and decisive theories as they have been exposed by Chief Prosecutor Eduardo Fungairinho as well as by the rest of the attorneys involved in the Chilean and Argentine cases.
Beyond the Audiencia Nacional, the Attorney-general himself, Jesus Cardenal, last Thursday October 29, 1998, during an interview that appeared in the second channel of Spanish Public TV, stated that he was confident that the Criminal Court of the Audiencia Nacional would agree with the Goverment in his opposition to the development of the cases.
This fact is extremely serious for it demonstrates that the Prosecutor's Office is not complying with the founction it has been assigned by the legal system itself for it has acted as the real mechanism of defense of the Argentine and Chilean military and violating all legal principles inherent to the Rule of Law.4) The competence issue was the fundamental point in order to: a) consolidate the investigation phase and b) to consolidate the possibility of application of what we have called "universal criminal jurisdiction of domestic courts".
This subject has a theoretical depth that must be taken into account for it entails the possibility of bringing before the ordinary courts to all those reponsible for serious crimes against human rights and systematic planning of such violations, in particular in those cases in which they took advantage of the state's structure to establish a system of impunity.
Since the very beginning of the proceedings there were two different lines of work in the Popular Accusation:
On the one hand, there was a strategy consisting of the application of the universal criminal jurisdiction and the need for prosecuting all those who were guilty and had not been punished yet, that is to say, those who enjoyed impunity. In short, the main objective was to attack the impunity systems that had been generated in Latin America. This task required and entailed a tight collaboration with the human rights organizations of the concerned countries. Therefore, from the Human Rights Secretariat of Izquierda Unida and with the documentary and logistic support, as well as legal advising of the Nizkor Team, a coordination with the human rights organisms specified lower down was established. This tight collaboration was crucial for the preparation of documentary and oral evidence. The coordination with the Chilean case has been carried out, since the very first moment, between the Human Rights Secretariat of Izquierda Unida and the Lawyer Joan Garces from the Salvador Allende Foundation.
a) In Argentine the work was coordinated with the following organisms: Asamblea Permanente por los Derechos Humanos (Permanent Assembly for Human Rights); Asociación de Familiares de Detenidos y Desaparecidos por Razones Políticas (Association of Relatives of Disappeared and Detainees for Political Reasons); Serpaj Buenos Aires (Peace and Justice Service-Buenos Aires) and Mothers of Plaza de Mayo Founding Line. The Ombudsman of the City of Buenos Aires and the Alliance Frepaso-UCR have also given their support in concrete matters, specially in relation with the problem of impunity in the Province of Tucuman which ended up with the indictment and prosecution of Tucuman's Governor, General Domingo Bussi, on the grounds of the evidence obtained in the Spanish proceeding.
b) In Chile the work was coordinated with the following organisms: Fasic (Fundación de Ayuda Social de las Iglesias Cristianas - Christian Churches Foundation for Social Aid); Codepu and Serpaj Chile.
In both countries the direct involvement of Amnesty International members was crucial for the success of many aspects of the work.
c) In Spain the work was coordinated with the following organisms: Spanish Section of Amnesty International, Judges for Democracy and the Human Rights Association of Andalusia.
The cases also counted with the indispensable support of the case researhers of Amnesty International London; Richard Wilson from the International Human Rights Law Clinic - University Washington D.C.; Derechos Human Rights; League for People's Rights and Liberation; Nuremberg Human Rights Center and the Peace and Justice Service Europe (Serpaj Europe).Their support was of crucial importance.
The commitment of all these organizations and individuals not only consisted of fighting impunity but also they wanted to rescue years and years of work and to achive ackkowledment for the professional work of human rights activists, in particular in Latin America. The purpose was beyond the trial, for this trial should reflect a work consistent with the defense of human rights.
On the other hand, within the popular accusations who are party to the suit there were proposals for legal foundations and methods of work different to which has been exposed until now. These different arguments were represented, on the one hand, by the so called Argentine Association for Human Rights, through the lawyer and representative of this organization, Carlos Slepoy, who explained this position before several human rights organizations in a meeting held in Paris and, on the other, by the Galician Confederation of Trade Unions, represented by the Lawyer Gustavo Garcia Fernandez, who explained this position in a tour around Argentine.5) Once the date for the public hearing before the Criminal Court of the Audiencia Nacional was fixed the private and popular accusations held two meetings (on October 20 and 26, 1998) in which the subjects that will be exposed by the lawyers were agreed upon as well as the strategy to be followed.
The basic documents that were adopted were the documents submitted by the Human Rights Secretariat of Izquierda Unida and the Association of Independent Lawyers, 1996; the documents on terrorism submitted by the Lawyer Carmen Lamarca as private accusation on behalf of the Bettini family, 1997; and the documents submitted by the Lawyers Enrique de Santiago and Virginia Díaz as private accusation on behalf of Graciela Lois. As for the Chilean case, the legal foundation elaborated by the Lawyer Joan Garces was adopted.
During the hearing the principal legal arguments were exposed as follows:
- Domestic Law: Lawyer Virginia Diaz (Human Rights Secretariat of Izquierda Unida and private accusation on behalf of Graciela Lois)
- International Law: Lawyer Enrique de Santiago (Human Rights Secretariat of Izquierda Unidad and private accusation on behalf of Graciela Lois)
- Genocide: Lawyer Manuel Ollé (Mothers of Plaza de Mayo Bonafini Line)
- Terrorism and criminal organization: Lawyer Carmen Lamarca (private accusation on behalf of the Bettini family)
- Lawyer Joan Garcés, in his turn, stressed the lack of impartiality and obstructionist attitude of the Prosecutor's Office and, in particular, of Chief Prosecutor of the Audiencia Nacional, Eduardo Fungairiño.
Lawyer Carlos Slepoy introduced the case. Lawyer José Galán, from the Association of Independent Lawyers came to close the different legal arguments. In his turn, Lawyer Gustavo García Fernández could not use his permission to speak because the tribunal considered that his exposition did not have enough legal value.6) On October 30, Friday, at 14:10 h. Judge Rapporteur of the Criminal Court of the Audiencia Nacional, Carlos Cezón, proceeded to the public reading of this court's resolution. The Criminal Court of the Audiencia Nacional (composed of 11 magistrates) dismissed by unanimous decision all the appeals submitted by the prosecutors and thus stated that the Spanish Courts in general and the Audiencia Nacional in particular, are competent to investigate the crimes of genocide and terrorism committed during the Chilean and Argentine military Juntas.
This resolution constitutes a landmark in the history of international law, in particular of Human Rights International Law and International Humanitarian Law for it comes to apply a series of human rights international standards, principles, treaties and judicial decisions. The two main consequences of this desision are the following: a) the application of the international conventions of human rights at a domestic (or internal) level, thus complying with the exact mandate of Spanish Constitution, and b) it is the first time since the Nuremberg trials that those responsible for serious crimes against humanity could be brought before a tribunal.
This preceding is a landmark for the consolidation of universal criminal jurisdiction of domestic courts in the cases of gross violations of human rights that offend the common conscience of humankind.
To conclude, we would like to recall the deliberations and conclusions of the 1st. Meeting on Impunity and its Effects on Democratic Processes, held in Santiago de Chile on December 1996. In this meeting, more than 180 humans rights organizations agreed upon the necessity of articulating an autonomous, ethical and political discourse in order to put an end to the impunity models that have prevailed in Latin America and as a counterweight to the national security doctrine. Moreover, during this seminar it was clarified that impunity favors as well the implantation of a neoliberal system for whose implementation there is a requeriment: the systematic violation of the economic, social and cultural rights of the peoples that are concerned.Edited by the Nizkor Human Rights Team in Madrid, on November 5, 1998
Juicio contra Pinochet
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