ESQ Legal Practice Magazine JUNE 2014 EDITION | Page 54

notorious of cases regarding
the subject of sovereign
immunity is to be found in the
trials of Augusto Pinochet. I
have relied extensively on
Brian P. Blocks and John
Hostettler's book titled
"Famous Cases, Nine Trials
that changed the law"
published in 2002 by
Waterside Press for my
information and material.
4] PINOCHET; THE
BACKGROUND
Augusto Jose Ramon Pinochet
Ugarte (hereinafter referred to
as "Pinochet") was a General
in the Chilean army. He was
born on the 25th of November,
1915 and died on 10th
December 2006 at the age of 91
years. On 11 September 1973
there was a military coup and
Pinochet assumed power and
on the same day was
appointed president of the
ruling junta. The coup d'état
saw to the end of President
Salvador Allende's
democratically elected
socialist government in Chile.
Eleven days later the new
regime was recognized by the
British government and a year
later, on 11 December 1974,
General Pinochet assumed the
title "President of the
Republic".
In December 1985, General
Ibrahim Badamosi Babangida
overthrew the two year old
regime of General
Muhammadu Buhari and for
the first time Nigeria,
Babangida did not use the title
Head of State but styled and
called himself "President".
In 1980 there was a national
referendum in Chile which
approved a new constitution
providing for executive power
to be exercised by the
President of the Republic as
head of state. The Pinochet
administration implemented
harsh and stringent measures
against persons considered to
be political opponents. Our
own country Nigeria has also
witnessed several harsh
military interventions with the
General Sanni Abacha regime
being the most draconian.
Allegations of mass killings of
about 3,000 people, detention
and torture of about 100,000
people which included
women and children were rife
during Pinochet's regime. The
same regime introduced
various economic reforms
which have been described as
the miracle of Chile. The
reforms made Chile till today
the best performing economy
in Latin- America. Pinochet
held that office until 1990

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when, after a democratic
general election, handed over
power to the new President on
11 March 1990. He was then
appointed Senator for life, an
appointment which afforded
him immunity for life in his
native Chile.
When Pinochet came to
Britain on a special diplomatic
mission in 1994, and again in
1995 and 1997, he was
afforded full diplomatic
courtesies. In September 1998,
at the age of 82 he returned to
Britain and with the full
knowledge of the British
Foreign Office he underwent
an operation at a London
Clinic.
Just before midnight on 16
October, 1998 and while still at
the London Clinic, he was
arrested pursuant to a
provisional warrant (the first)
issued under Section 8(1)(b) of
the Extradition Act 1989 by a
Metropolitan Stipendiary
Magistrate, Mr. Nicholas
Evans. On October 17, 1998
the Chilean government
protested and claimed
immunity on behalf of
Pinochet as a visiting diplomat
and former Head of State.
It was discovered that the
provisional warrant, which
was based on a claim of the
Spanish government that
Spanish citizens were
murdered in Chile was
deemed to be bad since
murder was not an extradition
crime in Britain at that time.
This flaw became apparent to
the British Crown Prosecution
Service who were acting on
behalf of the Spanish
government, and a second
international warrant of arrest,
which relied on events
between 1973 and 1979 in
Chile, was issued by a Spanish
court alleging crimes of
terrorism, the infliction of
severe pain and of genocide,
which are extraditable
offences. This resulted in a
second provisional warrant of
arrest issued by another
Metropolitan Stipendiary
Magistrate, Mr. Ronald Bartle,
and on this warrant, Pinochet
was re-arrested on October 23,
1998. The second provisional
warrant was good because
whereas the murder of a
British citizen abroad is not an
offence under English law,
torture is, irrespective of
where and on whom the
torture was committed; see
Section 134 (1) Criminal
Justice Act 1988 of the United
Kingdom, which makes
torture a universal crime. The
warrant was also premised

upon acts of hostage taking
within Section 1 of the Taking
of Hostages Act 1982.
5] THE QUEEN'S BENCH
DIVISION OF THE HIGH
COURT
The Divisional Court heard
Pinochet's challenge to the
warrant on the 26th and 27th
of October 1998. Pinochet
claimed that he was entitled to
immunity under customary
international law and the
provisions of Section 20 (1)
Part II State Immunity Act
1978, read with Section 2 of
Articles 29, 31 and 39 of
Schedule I to the Diplomatic
Privileges' Act 194.
The court was presided over
by the Lord Chief Justice of
England, Lord Justice
Bingham and both Mr Justice
Collins and Justice Richards
sat with him. They took
extensive arguments from
Pinochets lawyers and lawyers
to the Crown Prosecution
Service. The Court
unanimously held that
Pinochet was entitled as a
former Sovereign to immunity
from the criminal and civil
process of the English Courts
and the warrants of arrests
were quashed. The Crown
appealed to the House of
Lords (now known as the
Supreme Court).
6] THE FIRST APPEAL
The first appeal was heard
between 4th November, 1998
and 25th November, 1998
when judgment was delivered
by the House of Lords, a
period of just 21 days. Five
law Lords sat on the appeal.
They were Lord Slynn of
Hadley, Lord Lloyd of
Berwick, Lord Nicholls of
Birkenhead, Lord Steyn and
Lord Hoffman.
There were three grounds of
appeal;
1.
That state immunity
under Section 1 State
Immunity Act 1978 which
provides immunity to a
foreign state from the
jurisdiction of United
Kingdom courts also extends
it to a head of state in his
public capacity;
2.
That personal
immunity for a head of state
under Section 20 of the 1978
Act which provides immunity
to a head of state or former
head of state in the exercise of
his functions as head of state;
3.
That the common
law "act of state" doctrine
protects the appellant.
In view of the importance of
the case, the court invited

arguments from persons who
were not parties to the Court
as Amicus Curiae. This
practice is also not uncommon
in Nigeria. Amicus Curiae is a
Latin term which means
'friend of the court'. It is also
the name given to a brief filed
with the Court with leave of
the court by someone who is
not a party to a case. It may be