Judgment - Regina v. Bartle and the Commissioner of Police for the 
Metropolis and Others Ex Parte Pinochet
Regina v. Evans and Another and the Commissioner of Police for the
Metropolis and Others Ex Parte Pinochet (On Appeal from a Divisional Court
of the Queen's Bench Division)
------------------------------------------------------------------------

HOUSE OF LORDS
  Lord Browne-Wilkinson 
  Lord Goff of Chieveley 
  Lord Hope of Craighead
  Lord Hutton
  Lord Saville of Newdigate 
  Lord Millett  
  Lord Phillips of Worth Matravers  
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE
REGINA
v.
BARTLE AND THE COMMISSIONER OF POLICE FOR THE METROPOLIS AND OTHERS
(APPELLANTS)
EX PARTE PINOCHET
(RESPONDENT)
REGINA
v.
EVANS AND ANOTHER AND THE COMMISSIONER OF POLICE FOR THE METROPOLIS AND
OTHERS
(APPELLANTS)
EX PARTE PINOCHET
(RESPONDENT)
(ON APPEAL FROM A DIVISIONAL COURT OF THE QUEEN'S BENCH DIVISION)
ON 24 March 1999



LORD SAVILLE OF NEWDIGATE

My Lords,

In this case the Government of Spain seeks the extradition of Senator
Pinochet (the former head of state of Chile) to stand trial in Spain for a
number of alleged crimes. On this appeal two questions of law arise.
Senator Pinochet can only be extradited for what in the Extradition Act 1989
is called an extradition crime. Thus the first question of law is whether
any of the crimes of which he stands accused in Spain is an extradition
crime within the meaning of that Act.
As to this, I am in agreement with the reasoning and conclusions in the
speech of my noble and learned friend Lord Browne-Wilkinson. I am also in
agreement with the reasons given by my noble and learned friend Lord Hope of
Craighead in his speech for concluding that only those few allegations that
he identifies amount to extradition crimes.
These extradition crimes all relate to what Senator Pinochet is said to have
done while he was head of state of Chile. The second question of law is
whether, in respect of these extradition crimes, Senator Pinochet can resist
the extradition proceedings brought against him on the grounds that he
enjoys immunity from these proceedings.
In general, under customary international law serving heads of state enjoy
immunity from criminal proceedings in other countries by virtue of holding
that office. This form of immunity is known as immunity ratione personae. It
covers all conduct of the head of state while the person concerned holds
that office and thus draws no distinction between what the head of state
does in his official capacity (i.e. what he does as head of state for state
purposes) and what he does in his private capacity.
Former heads of state do not enjoy this form of immunity. However, in
general under customary international law a former head of state does enjoy
immunity from criminal proceedings in other countries in respect of what he
did in his official capacity as head of state. This form of immunity is
known as immunity ratione materiae.
These immunities belong not to the individual but to the state in question.
They exist in order to protect the sovereignty of that state from
interference by other states. They can, of course, be modified or removed by
agreement between states or waived by the state in question.
In my judgment the effect of Section 20(1)(a) of the State Immunity Act 1978
is to give statutory force to these international law immunities.
The relevant allegations against Senator Pinochet concern not his private
activities but what he is said to have done in his official capacity when he
was head of state of Chile. It is accepted that the extradition proceedings
against him are criminal proceedings. It follows that unless there exists,
by agreement or otherwise, any relevant qualification or exception to the
general rule of immunity ratione materiae, Senator Pinochet is immune from
this extradition process.
The only possible relevant qualification or exception in the circumstances
of this case relates to torture.
I am not persuaded that before the Torture Convention there was any such
qualification or exception. Although the systematic or widespread use of
torture became universally condemned as an international crime, it does not
follow that a former head of state, who as head of state used torture for
state purposes, could under international law be prosecuted for torture in
other countries where previously under that law he would have enjoyed
immunity ratione materiae.
The Torture Convention set up a scheme under which each state becoming a
party was in effect obliged either to extradite alleged torturers found
within its jurisdiction or to refer the case to its appropriate authorities
for the purpose of prosecution. Thus as between the states who are parties
to the Convention, there is now an agreement that each state party will
establish and have this jurisdiction over alleged torturers from other state
parties.
This country has established this jurisdiction through a combination of
Section 134 of the Administration of Justice Act 1988 and the Extradition
Act 1989. It ratified the Torture Convention on 8 December 1988. Chile's
ratification of the Convention took effect on 30 October 1988 and that of
Spain just over a year earlier.
It is important to bear in mind that the Convention applies (and only
applies) to any act of torture "inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person acting
in an official capacity." It thus covers what can be described as official
torture and must therefore include torture carried out for state purposes.
The words used are wide enough to cover not only the public officials or
persons acting in an official capacity who themselves inflict torture but
also (where torture results) those who order others to torture or who
conspire with others to torture.
To my mind it must follow in turn that a head of state, who for state
purposes resorts to torture, would be a person acting in an official
capacity within the meaning of this Convention. He would indeed to my mind
be a prime example of an official torturer.
It does not follow from this that the immunity enjoyed by a serving head of
state, which is entirely unrelated to whether or not he was acting in an
official capacity, is thereby removed in cases of torture. In my view it is
not, since immunity ratione personae attaches to the office and not to any
particular conduct of the office holder.
On the other hand, the immunity of a former head of state does attach to his
conduct whilst in office and is wholly related to what he did in his
official capacity.
So far as the states that are parties to the Convention are concerned, I
cannot see how, so far as torture is concerned, this immunity can exist
consistently with the terms of that Convention. Each state party has agreed
that the other state parties can exercise jurisdiction over alleged official
torturers found within their territories, by extraditing them or referring
them to their own appropriate authorities for prosecution; and thus to my
mind can hardly simultaneously claim an immunity from extradition or
prosecution that is necessarily based on the official nature of the alleged
torture.
Since 8 December 1988 Chile, Spain and this country have all been parties to
the Torture Convention. So far as these countries at least are concerned it
seems to me that from that date these state parties are in agreement with
each other that the immunity ratione materiae of their former heads of state
cannot be claimed in cases of alleged official torture. In other words, so
far as the allegations of official torture against Senator Pinochet are
concerned, there is now by this agreement an exception or qualification to
the general rule of immunity ratione materiae.
I do not reach this conclusion by implying terms into the Torture
Convention, but simply by applying its express terms. A former head of state
who it is alleged resorted to torture for state purposes falls in my view
fairly and squarely within those terms and on the face of it should be dealt
with in accordance with them. Indeed it seems to me that it is those who
would seek to remove such alleged official torturers from the machinery of
the Convention who in truth have to assert that by some process of
implication or otherwise the clear words of the Convention should be treated
as inapplicable to a former head of state, notwithstanding he is properly
described as a person who was "acting in an official capacity".
I can see no valid basis for such an assertion. It is said that if it had
been intended to remove immunity for alleged official torture from former
heads of state there would inevitably have been some discussion of the point
in the negotiations leading to the treaty. I am not persuaded that the
apparent absence of any such discussions takes the matter any further. If
there were states that wished to preserve such immunity in the face of
universal condemnation of official torture, it is perhaps not surprising
that they kept quiet about it.
It is also said that any waiver by states of immunities must be express, or
at least unequivocal. I would not dissent from this as a general
proposition, but it seems to me that the express and unequivocal terms of
the Torture Convention fulfil any such requirement. To my mind these terms
demonstrate that the states who have become parties have clearly and
unambiguously agreed that official torture should now be dealt with in a way
which would otherwise amount to an interference in their sovereignty.
For the same reasons it seems to me that the wider arguments based on Act of
State or non-justiciability must also fail, since they are equally
inconsistent with the terms of the Convention agreed by these state parties.
I would accordingly allow this appeal to the extent necessary to permit the
extradition proceedings to continue in respect of the crimes of torture and
(where it is alleged that torture resulted) of conspiracy to torture,
allegedly committed by Senator Pinochet after 8 December 1988. I would add
that I agree with what my noble and learned friend Lord Hope of Craighead
has said at the end of his speech with regard to the need for the Secretary
of State to reconsider his decision and (if renewed authority to proceed is
given) the very careful attention the magistrate must pay to the information
laid before him.

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  Lord Browne-Wilkinson 
  Lord Goff of Chieveley 
  Lord Hope of Craighead
  Lord Hutton
  Lord Saville of Newdigate 
  Lord Millett  
  Lord Phillips of Worth Matravers