UNITED KINGDOM: Justice, not politics: The need for a fair and transpa
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* News Release Issued by the International Secretariat of Amnesty
International *
UNITED KINGDOM
Justice, not politics: The need for a fair and transparent procedure in
the Pinochet case
"...justice should not only be done, but should manifestly and
undoubtedly be seen to be done."
House of Lords in Pinochet litigation, R . v. Bow Street Magistrate, Ex
parte Pinochet (No.2) [1999]
2 WLR 272, quoting Lord Hewart, C.J. in Rex v. Sussex Justices, Ex parte
McCarthy [19234] 1 K.B. 256, 259.
INTRODUCTION
On 25 January 2000, Amnesty International, the Association of the
Relatives of Disappeared Persons, Human Rights Watch, Justicia, the
Medical Foundation for the Care of Victims of Torture and the Redress
Trust initiated legal action to seek review by the courts of the
procedure used by Jack Straw, the United Kingdom Home Secretary, to
determine whether Senator Pinochet is fit to stand trial.
The organizations have taken this action because they are deeply
concerned about the manner in which the Home Secretary has intervened in
the proceedings to determine whether Senator Pinochet should be
extradited to Spain to be tried on charges of crimes against humanity.
The organizations consider that the Home Secretary has used an unfair
procedure to determine Senator Pinochet's mental condition and to reach
his preliminary decision that Senator Pinochet is unfit to be tried and
therefore should not be extradited. If the Home Secretary continues with
this course of action and allows Senator Pinochet to return to Chile,
the significant flaws in the procedure will forever cast serious doubt
about whether justice was done.
If Senator Pinochet was found by a court to be unfit to participate in
legal proceedings following a full and open hearing at which the
evidence was subject to testing, the organizations would support the
suspension of further legal action, in accordance with international
standards for fair trials.
CONCERNS ABOUT THE PROCEDURE USED BY THE HOME SECRETARY
The Home Secretary has acknowledged that in considering whether Senator
Pinochet should be extradited he is acting in a "quasi-judicial" role.
Statement to the House of Commons, 12 January 2000. Accordingly, he was
obliged to use a procedure which is fair and can be seen to be fair.
Amnesty International and the other organizations believe the procedure
he used is unfair and as a consequence may provide an unsound basis for
him to decide whether Senator Pinochet should be extradited. The
concerns about the procedure are, among other things:
*prior to the medical examination, the Home Secretary did not notify the
states requesting Senator Pinochet's extradition and those representing
the interests of victims and their families of the procedure to be
followed, the composition of the panel of experts, the instructions to
the panel and the criteria that he was going to use to evaluate the
report. Therefore they did not have an opportunity to contest the
fairness of the procedure and, as is described below, there are
significant concerns that the procedure that was used may have led to
inaccurate conclusions;
*the Home Secretary did not invite or authorize the interested parties,
including the states requesting extradition, to have observers present
during the medical examination. If the parties had been permitted to
have observers present, they would have been able to suggest lines of
inquiry and tests within their area of expertise;
*the Home Secretary failed to provide the medical records to the
interested parties. Three requesting states - Belgium, France and Spain
- are known to have requested to see them and this failure violates the
UK's international obligations to cooperate with other governments in
bringing to justice those responsible for crimes against humanity
wherever these crimes occurred and not to take any measures which would
be prejudicial to these obligations.
CONCERNS ABOUT THE MEDICAL PANEL, ITS PROCEDURE AND CONCLUSIONS
Amnesty International and the other organizations have received
information that provides grounds for concern about the composition of
the medical panel that examined Senator Pinochet, its procedures and its
findings. They include:
*the panel of experts who examined Senator Pinochet did not include an
old-age psychiatrist;
*the short period of observation by the panel and the setting may have
been insufficient to determine unequivocally that Senator Pinochet is
unfit to undergo further judicial proceedings;
*the procedure adopted by the panel failed to take reasonable
precautions to ensure the accuracy of their observations and to reduce
the risk of falsification of symptoms of dementia - it is known to be
possible to imitate symptoms of mental illness or Alzheimer's disease in
the short term;
*the findings may be consistent with Senator Pinochet suffering from a
treatable, temporary condition - it would be inappropriate to refuse to
extradite him if there is a possibility of his recovery.
The organizations also note that there have been recent public reports
about Senator Pinochet's mental condition which appear inconsistent with
the reported conclusions of the medical panel. For example, reported
view of Judge Juan Guzman, the judge responsible for investigating
Senator Pinochet in Chile, that Senator Pinochet has "perfect mental
faculties" (The Observer, 23 January 2000).
WHAT AMNESTY INTERNATIONAL AND THE OTHER ORGANIZATIONS WANT THE COURT TO
DECIDE
Responding to representations by the organizations, in a letter dated
18th January the Home Secretary informed the organizations that
*he could not release the medical report because Senator Pinochet would
not consent, and
*a further medical examination was not necessary - the panel that had
examined Senator Pinochet was suitably qualified and had used
appropriate criteria.
The letter indicated that he would take other representations into
account and make a decision whether or not to extradite Senator
Pinochet.
Amnesty International and the other organizations are seeking a court
order that the Home Secretary's decision to proceed to determine whether
to extradite Senator Pinochet without agreeing to the organizations'
requests to provide the medical report and to require a new examination
is wrong.
AMNESTY INTERNATIONAL'S RECOMMENDATIONS TO THE HOME SECRETARY
In addition to the matters that are the subject of the legal action,
Amnesty International calls upon the Home Secretary to do the following:
The Home Secretary should not make any orders not to extradite Senator
Pinochet to Spain pending a full opportunity for the courts to consider
the request for judicial review and reach a final decision on that
request.
The Home Secretary should permit the requesting states to cross-examine
the four experts who conducted the examination on 5 January.
The Home Secretary should limit his decision to a determination whether
Senator Pinochet is fit to instruct his counsel in the appeal of the
extradition order and, unless Senator Pinochet is unfit to travel to
Spain (or any other country), he should leave any decision as to his
fitness to stand trial to the Spanish courts. There is adequate
provision in Spanish law for ascertaining the mental capacity of an
accused person and for the proceedings to be suspended where the accused
is suffering from a mental condition which renders them unfit to be
tried.
The Home Secretary should set out the basis of his final decision.
The Home Secretary's final decision should be subject to sufficient
delay, consistent with domestic and international legal standards on
detention, to permit the requesting states and other interested parties
to seek judicial review of that decision while Senator Pinochet remains
subject to the jurisdiction of United Kingdom courts.
The Home Secretary's decision should be subject to sufficient delay,
consistent with domestic and international legal standards on detention,
to permit the Director of Public Prosecutions to take action on the
requests for a criminal investigation, while Senator Pinochet remains
subject to the jurisdiction of United Kingdom courts, based on the
submissions the Director of Public Prosecutions has received and the
full record of the Spanish criminal investigation.
Background
*17 October 1998, Senator Pinochet arrested in the UK.
*24 March 1999 - the House of Lords held that Senator Pinochet did not
have immunity as the former President of Chile from charges of torture .
*8 October 1999, a court ordered the extradition of Senator Augusto
Pinochet to Spain to face charges of torture and conspiracy to torture.
*14 October 1999, the Republic of Chile made representations to the Home
Secretary concerning Senator Pinochet, suggesting his health had
seriously deteriorated.
*22 October 1999, Senator Pinochet challenged the extradition order and
a court is scheduled to hear his application for habeas corpus in March
2000.
*5 January 2000, a panel of doctors appointed by the Home Secretary
examined Senator Pinochet.
*11 January 2000, the Home Secretary notified Spain, Belgium,
Switzerland and France, the four states requesting extradition, and
other interested parties that Senator Pinochet had been examined and
that the medical report concluded that Senator Pinochet "is at present
unfit to stand trial and that no change to that position can be
expected" and that he is "minded" not to extradite Senator Pinochet. He
also stated that Senator Pinochet's solicitors declined to consent to
the release of the medical report to the requesting states. He invited
representations from the requesting states, the Chilean government, and
five non-governmental organizations (NGOs) which had previously
participated in the legal proceedings for the extradition of Senator
Pinochet: Amnesty International, Human Rights Watch, the Association of
the Relatives of Disappeared Persons, the Medical Foundation for the
Care of Victims of Torture, and Redress.
*14 January 2000, Judge Garzon, the Spanish judge in charge of the
investigation of Senator Pinochet, wrote to the UK authorities
requesting a second medical examination with possible participation by
doctors appointed by a Spanish court;
*14 January 2000, Amnesty International and other NGOs requested the
Home Secretary to disclose the medical report and allow interested
parties to nominate appropriate experts to carry out their own
investigations;
*18 January 2000, Amnesty International and other NGOs made
representations to the Home Secretary, stating that they considered the
procedure he had used was unfair and raising serious doubts about the
reliability of the medical report and its conclusions;
*18 January 2000, the Home Secretary responded, stating among other
things that he did not have reason to believe a further examination of
Senator Pinochet was necessary to enable the Home Secretary to determine
whether or not to extradite him;
*20 January 2000, Belgian investigating Judge Damien Vandermeersch
formally requested the UK authorities to appoint a panel of experts to
conduct a new medical examination in the presence of a Belgian expert.
ENDS.../
Amnesty International, International Secretariat, 1 Easton Street,
WC1X 8DJ, London, United Kingdom
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