The House of Lords has been told that the former Chilean dictator, Gen Augusto Pinochet, was not in fact head of state when many of the "savage and barbarous crimes" alleged against him were committed.
Mr Alun Jones QC made his claim yesterday as he opened an appeal on behalf of the Spanish authorities to Britain's "court of last resort" against last week's High Court ruling that Gen Pinochet's arrest was unlawful because he enjoys immunity as a former head of state.
Introducing new material about the events preceding and surrounding the military coup in September 1973, Mr Jones raised the question of whether Gen Pinochet could in fact have been considered the legitimate head of state at various points during the period when assorted crimes were committed.
Mr Jones told the court that the new material, set out in the draft Spanish extradition request, outlined how Gen Pinochet headed the coup which resulted in the overthrow and death of the Communist president, Salvador Allende, and thereafter in "a most ferocious oppression" until the general gave up the presidency in 1990.
It was alleged there was a criminal plot to carry out "a systematic plan . . . for political objectives" of illegal detentions, kidnappings, torture, and the deaths and disappearances of some 4,000 people of different nationalities, including Spaniards, Britons, Chileans and citizens of other Latin American states.
On September 11th, 1973, a decree had been issued legitimising the coup. But, Mr Jones told the five law lords, it was alleged that in the hours before that 28 people disappeared, were tortured and apparently executed.
"The plan was put into operation in Chile before there could be any question of the respondent [Gen Pinochet] considering himself head of state or being appointed," said Mr Jones.
Similarly the status of the military-led Chilean government had remained "a grey area", at least until the introduction of the new constitution in March 1981, which Mr Jones said begged the question of whether Gen Pinochet could properly be described as head of state during the early years of his rule.
But even if he was, said Mr Jones, his alleged "crimes against humanity" were committed outside his functions as national leader and he was therefore not entitled to claim sovereign immunity from arrest and extradition.
Mr Clive Nicholls QC, appearing for the general, objected to Mr Jones's contentions, and asked the judges not to admit the new evidence. He said the High Court had considered the case purely on the basis that Gen Pinochet was head of state at the time of the alleged crimes, and that the appeal should also be conducted on that basis.
However, Lord Slynn, Lord Hoffman, Lord Nicholls, Lord Lloyd and Lord Steyn said they would hear the new evidence and rule on its admissibility later.
As the hearing got under way the Spanish judge seeking Gen Pinochet's extradition insisted he was not entitled to sovereign immunity, and rejected suggestions that his extradition to Spain could result in Queen Elizabeth being extradited and tried for human rights abuses committed by Britons abroad. His 300-page submission was sent to Spain's Minister for Justice.
