The Spanish government's attempt to bring numerous charges of torture against Gen Augusto Pinochet flouted English extradition law and the European Convention on Extradition, a lawyer representing the former Chilean dictator told Bow Street Magistrates' Court in London yesterday. The majority of the 35 charges detailing allegations of torture, electric shocks, semi-asphyxiation and beatings carried out by the Chilean security forces towards the end of Gen Pinochet's 17-year rule should not be considered, Mr Clive Nicholls QC argued, because they were filed after Spain's original extradition request on November 3rd last year.
Opening the case for Gen Pinochet on the second day of formal extradition proceedings against him, Mr Nicholls said that under the 1989 Extradition Act and the European Convention on Extradition, the court should be concerned only with the offences detailed in Spain's original extradition request.
The House of Lords had substantially reduced the number of charges against Gen Pinochet when it ruled in March that he was protected by sovereign immunity against charges prior to the British ratification of the Convention Against Torture of December 8th, 1988.
The consequence of that decision, Mr Nicholls argued, was that the court should consider only the charge of conspiracy to torture and one of the alleged torture offences, as they were the only charges contained in the original extradition request.
The Spanish authorities had also failed to establish jurisdiction in the case, since none of the alleged crimes took place in Spain, none of the victims were Spanish and Gen Pinochet was not in Spain. Furthermore, there was no suggestion that Gen Pinochet was personally involved in beatings and torture. "No one suggests that Senator Pinochet's hands are in fact on any of these acts. No one suggests he was personally involved," Mr Nicholls said.
His co-counsel, Mr Julian Knowles, said it was clear that Gen Pinochet was not accused of being a "principal" or "having had his hand" on acts of torture.
"The case is that he gave the orders, that he was a counsellor. The essential allegation against Gen Pinochet is that tortures were committed in Chile as part of a policy that began around the time of the coup in September 1973.
"We say it is plain that having a mere policy doesn't make you liable as a secondary party for any act of torture, committed anywhere in Chile, by anyone, at any time, in the subsequent 17 years," Mr Knowles said.
To establishing secondary responsibility in English law, there had to be proof of communication between a secondary party and the person directly responsible for the offence. However, there was nothing to suggest that Gen Pinochet approved, encouraged or gave orders directly or indirectly or even had a motive to carry out torture.
Referring to the allegation of torture against a 17-year-old in 1989 which was contained in the original extradition request, Mr Knowles said the allegation did not involve the security forces but a local police force. The youth was subjected to electric shocks. The incident was not a politically motivated act, but a "simple case of police brutality" similar to complaints made against the police in Chile after democracy and on occasion against police in Spain and Britain.
At the end of the hearing, Mr Alun Jones QC, for the Spanish government, told the court he would be seeking an adjournment at a later date to consider material served by the defence. which alleged that a "barely concealed political bias" underlined the case against Gen Pinochet. The material alleged that the investigating Spanish magistrate, Judge Gar zon, was driven by political antagonism in Spain against Gen Pinochet's overthrow of the socialist government in Chile in 1973.
Reuters adds: Chile said yesterday it would take Spain to the International Court of Justice in an attempt to halt the extradition bid. It would ask the court to rule that Spain's judiciary could not judge him, Mr Jaime Lagos, Chile's legal adviser, told reporters.