Raich.06
0 . La decisión de la High Court puede verse en http://www.courtservice.gov.uk/highhome.htm y la primera de ´los Law Lords en http://tap.ccta.gov.uk/courtser/judgments.nsf/4dee7f7e73c7d6c28025655900716be8/b415b144908598e2802566ad0062261b?OpenDocument
Destaco en negritas lo que considero más significativo.
1 En la decisión de la High Court son de destacar los fundamentos legislativos.
THE LORD CHIEF JUSTICE (Lord Bingham)
(...)
35. The applicant's proposition, put simply, is that a court in the United Kingdom will not exert criminal or civil jurisdiction over a former Head of State of a foreign country in relation to any act done in the exercise of sovereign power. That submission is based, first, on section 1 of the State Immunity Act 1978, which provides:
"1. A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act.
"2. A court shall give effect to the immunity conferred by this section even though the State does not appear in the proceedings in question."
I draw attention also to section 14(1) which provides:
"The immunities and privileges conferred by this Part of this Act apply to any foreign or commonwealth State other than the United Kingdom; and references to a State include references to --
"(a) the sovereign or other head of that State in his public capacity;
Section 20(1) provides:
"Subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to --
"(a) a sovereign or other head of State;
"as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants."
Section 23(3) provides:
"Subject to subsection (4) below, Parts I and II of this Act do not apply to proceedings in respect of matters that occurred before the date of the coming into force of this Act
It is in my judgment plain by implication that Part III, which includes section 20, does apply to proceedings in respect of matters that occurred before the coming into force of the Act.
36. The Diplomatic Privileges Act 1964 to which reference is made incorporates and gives effect in English law to the Vienna Convention. Section 1 provides:
"The following provisions of this Act shall, with respect to the matters dealt with therein, have effect in substitution for any previous enactment or rule of law."
37. Section 2 deals with the incorporation of the Vienna Convention, and some of its Articles are set out in a Schedule to the Act. Article 29 provides:
"The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity."
38. Article 31 provides:
"1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
39. There follow exceptions irrelevant for present purposes.
40. Article 39 provides:
"1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceedings to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.
2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.
2 . Las partes hicieron sus alegaciones basándose en tal legislación:
41.The applicant submits that, read with section 20(1) of the 1978 Act, Article 39 confers the same immunity on a head of state or a former head of state as on a head or former head of a diplomatic mission. He submits that after a head of state ceases to be such, he ceases to enjoy any immunity in respect of personal or private acts but continues to enjoy immunity in respect of public acts performed by him as head of state, that is in respect of the exercise by him of sovereign power in that capacity.
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48. Mr Jones, in a sustained argument on behalf of the Crown Prosecution Service, takes strong issue with this interpretation of the 1964 and 1978 Acts. He submits that, if section 20(1) of the 1978 Act and Article 39 of the Vienna Convention are read together, immunity only applies to a former head of state in relation to sovereign acts performed in this country. That is an argument which I cannot accept. No such geographical limitation is to be found in the provisions; no such geographical limitation applies to heads of mission; and it is not perhaps very probable that a foreign sovereign would exercise sovereign power in this country. The submission is in any event inconsistent with the underlying rationale of the rule, which is a rule of international comity restraining one sovereign state from sitting in judgment on the sovereign behaviour of another. He then argues that the protection accorded to a foreign sovereign avails him only in relation to the discharge of his functions as head of state, and such functions, Mr Jones contends, cannot include conduct such as that charged against the applicant. That is an argument which has some attraction. But a former head of state is clearly entitled to immunity in relation to criminal acts performed in the course of exercising public functions. One cannot therefore hold that any deviation from good democratic practice is outside the pale of immunity. If the former sovereign is immune from process in respect of some crimes, where does one draw the line?
Se comprende la pregunta para rebatir la opinión del Fiscal, pero en realidad no cabe tal pregunta, pues viola el principio jurídico "Ubi lex non distinguit, nec non distinguere debemus." (Donde la ley no distingue, debemos no distinguir.).
Mr Jones answers that some crimes are so deeply repugnant to any notion of morality as to constitute crimes against humanity and that there can be no immunity in respect of them. Thus, he submits that a former head of state (or presumably a head of state) can be held criminally responsible for such acts like anyone else. In that category he would place such crimes as genocide, torture, the taking of hostages and other crimes of a similarly offensive character.
La respuesta de Mr. Jones viola tal principio jurídico.
3 . Pasemos a estudiar el primer fallo del Tribunal de los Lores.
LORD SLYNN OF HADLEY
So, starting with the basic rule to be found both in Article 39(2) and in customary
international law that a former Head of State is entitled to immunity from arrest or
prosecution in respect of official acts done by him in the exercise of his functions as Head
of State, the question is what effect, if any, the recognition of acts as international crimes
has in itself on that immunity.
Ningún efecto. La ley vista no dice que estén exentos de inmunidad los crímenes internacionales.
Lord Slynn sigue estudiando tal imposible efecto:
There are two extreme positions. The first is that such recognition has no effect. Head of State immunity is still necessary for a former Head of State in respect of his official acts; it is long established, well recognised and based on sound reasons. States must be treated as recognising it between themselves so that it overrides any criminal act, whether national or international. This is a clear cut rule, which for that reason has considerable attraction. It, however, ignores the fact that international law is not static and that the principle may be modified by changes introduced in State practice, by Conventions and by the informed opinions of international jurists. Just as it is now accepted that, contrary to an earlier principle of absolute immunity, States may limit State immunity to acts of sovereign authority (acta jure imperii) and exclude commercial acts (acta jure gestionis) as the United Kingdom has done and just as the immunity of a former Head of State is now seen to be limited to acts which he did in his official capacity and to exclude private acts, so it is argued, the immunity should be treated as excluding certain acts of a criminal nature.
The opposite extreme position is that all crimes recognised as, or accepted to be, international crimes are outside the protection of the immunity in respect of former Heads of State. I do not accept this. The fact even that an act is recognised as a crime under international law does not mean that the Courts of all States have jurisdiction to try it, nor in my view does it mean that the immunity recognised by States as part of their international relations is automatically taken away by international law. There is no universality of jurisdiction for crimes against international law: there is no universal rule that all crimes are outside immunity ratione materiae.
There is, however, another question to be asked. Does international law now recognise that some crimes are outwith the protection of the former Head of State immunity so that immunity in Article 39 (2) is equally limited as part of domestic law; if so, how is that established? This is the core question and it is a difficult question.
It is difficult partly because changes in international law take place slowly as states modify existing principles. It is difficult because in many aspects of this problem the appropriate principles of international law have not crystallised. There is still much debate and it seems to me still much uncertainty so that a national judge should proceed carefully. He may have to say that the position as to State practice has not reached the stage when he can identify a positive rule at the particular time when he has to consider the position. This is clearly shown by the developments which have taken place in regard to crimes against humanity. The concept that such crimes might exist was as I have said recognised, for Nuremburg and the Tokyo Tribunals in 1946 in the context of international armed conflict when the tribunals were given jurisdiction to try crimes against humanity. The Affirmation of the Principles of International Law adopted by the United Nations General Assembly in December 1945, the International Law Commission reports and the European Convention on Human Rights and Fundamental Freedoms also recognised these crimes as international crimes. Since then there have been, as I have shown, conventions dealing with specific crimes and tribunals have been given jurisdiction over international crimes with a mandate not to treat as a defence to such crimes the holding of official office including that of Head of State. National Courts as in the Eichmann Case held that they had jurisdiction to deal with international crimes (see also Re Honecker (1984) 80 I.L.R. 36, and Demanjanjuk 776 F 2d 511).
But except in regard to crimes in particular situations before international tribunals these measures did not in general deal with the question as to whether otherwise existing immunities were taken away. Nor did they always specifically recognise the jurisdiction of, or confer jurisdiction on, National Courts to try such crimes.
I do not find it surprising that this has been a slow process or that the International Law Commission eventually left on one side its efforts to produce a convention dealing with Head of State immunity. Indeed, until Prosecutor v. Tadic (105 I.L.R. 419) after years of discussion and perhaps even later there was a feeling that crimes against humanity were committed only in connection with armed conflict even if that did not have to be international armed conflict.
If the States went slowly so must a national judge go cautiously in finding that this immunity in respect of former Heads of State has been cut down. Immunity, it must be remembered, reflects the particular relationship between states by which they recognise the status and role of each others Head and former Head of State.
So it is necessary to consider what is needed, in the absence of a general international convention defining or cutting down Head of State immunity, to define or limit the former Head of State immunity in particular cases. In my opinion it is necessary to find provision in an international convention to which the State asserting, and the State being asked to refuse, the immunity of a former Head of State for an official act is a party; the convention must clearly define a crime against international law and require or empower a state to prevent or prosecute the crime, whether or not committed in its jurisdiction and whether or not committed by one of its nationals; it must make it clear that a National Court has jurisdiction to try a crime alleged against a former Head of State, or that having been a Head of State is no defence and that expressly or impliedly the immunity is not to apply so as to bar proceedings against him. The convention must be given the force of law in the National Courts of the State; in a dualist country like the United Kingdom that means by legislation, so that with the necessary procedures and machinery the crime may be prosecuted there in accordance with the conditions to be found in the convention.
Exacto. Sería preciso modificar la ley. Mientras no se modifique, hay inmunidad.
4
LORD LLOYD OF BERWICK
But the appellants have two further arguments. First they say that the crimes alleged
against Senator Pinochet are so horrific that an exception must be made to the ordinary
rule of customary international law. Secondly they say that the crimes in question are
crimes against international law, and that international law cannot both condemn conduct
as a breach of international law and at the same time grant immunity from prosecution. It
cannot give with one hand and take away with the other.
As to the first submission, the difficulty, as the Divisional Court pointed out, is to know where to draw the line. Torture is, indeed, a horrific crime, but so is murder. It is a regrettable fact that almost all leaders of revolutionary movements are guilty of killing their political opponents in the course of coming to power, and many are guilty of murdering their political opponents thereafter in order to secure their power. Yet it is not suggested (I think) that the crime of murder puts the successful revolutionary beyond the pale of immunity in customary international law. Of course it is strange to think of murder or torture as "official" acts or as part of the head of state's "public functions." But if for "official" one substitutes "governmental" then the true nature of the distinction between private acts and official acts becomes apparent. For reasons already mentioned I have no doubt that the crimes of which Senator Pinochet is accused, including the crime of torture, were governmental in nature. I agree with Collins J. in the Divisional Court that it would be unjustifiable in theory, and unworkable in practice, to impose any restriction on head of state immunity by reference to the number or gravity of the alleged crimes. Otherwise one would get to this position: that the crimes of a head of state in the execution of his governmental authority are to be attributed to the state so long as they are not too serious. But beyond a certain (undefined) degree of seriousness the crimes cease to be attributable to the state, and are instead to be treated as his private crimes. That would not make sense.
As to the second submission, the question is whether there should be an exception from the general rule of immunity in the case of crimes which have been made the subject of international conventions, such as the International Convention against the Taking of Hostages (1980) and the Convention against Torture (1984). The purpose of these conventions, in very broad terms, was to ensure that acts of torture and hostage-taking should be made (or remain) offences under the criminal law of each of the state parties, and that each state party should take measures to establish extra-territorial jurisdiction in specified cases. Thus in the case of torture a state party is obliged to establish extra-territorial jurisdiction when the alleged offender is a national of that state, but not where the victim is a national. In the latter case the state has a discretion: see article 5.1(b) and (c). In addition there is an obligation on a state to extradite or prosecute where a person accused of torture is found within its territory--aut dedere aut judicare: see article 7. But there is nothing in the Torture Convention which touches on state immunity. The contrast with the Convention on the Prevention and Punishment of the Crime of Genocide (1948) could not be more marked. Article 4 of the Genocide Convention provides:
"Persons committing genocide or any of the other acts enumerated in article 3 shall be punished whether they are constitutionally responsible rulers or public officials or private individuals."
There is no equivalent provision in either the Torture Convention or the Taking of Hostages Convention.
Moreover when the Genocide Convention was incorporated into English law by the Genocide Act 1969, article 4 was omitted. So Parliament must clearly have intended, or at least contemplated, that a head of state accused of genocide would be able to plead sovereign immunity. If the Torture Convention and the Taking of Hostages Convention had contained a provision equivalent to article 4 of the Genocide Convention (which they did not) it is reasonable to suppose that, as with genocide, the equivalent provisions would have been omitted when Parliament incorporated those conventions into English law. I cannot for my part see any inconsistency between the purposes underlying these Conventions and the rule of international law which allows a head of state procedural immunity in respect of crimes covered by the Conventions.
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If civil claims based on acts of torture were intended to be excluded from the immunity afforded by section 1(1) of the Act of 1978, because of the horrifying nature of such acts, or because they are condemned by international law, it is inconceivable that section 1(1) would not have said so.
5
LORD NICHOLLS
This raises the question whether, in the case of a former head of state, the
continuing immunity embraces acts performed in exercise of any of his "functions as a
head of state" or is confined to such of those acts as have an international character. I
prefer the former, wider interpretation. There is no reason for cutting down the ambit of
the protection, so that it will embrace only some of the functions of a head of state. (I set
out below the test for determining what are the functions of a head of state.)
The question which next arises is the crucial question in the present case. It is whether the acts of torture and hostage-taking charged against Senator Pinochet were done in the exercise of his functions as head of state. The Divisional Court decided they were because, according to the allegations in the Spanish warrant which founded the issue of the provisional warrant in this country, they were committed under colour of the authority of the government of Chile. Senator Pinochet was charged, not with personally torturing victims or causing their disappearance, but with using the power of the state of which he was the head to that end. Thus the Divisional Court held that, for the purposes of article 39.2, the functions of head of state included any acts done under purported public authority in Chile. The Lord Chief Justice said the underlying rationale of the immunity accorded by article 39.2 was "a rule of international comity restraining one sovereign state from sitting in judgment on the sovereign behaviour of another." It therefore applied to all sovereign conduct within Chile.
Your Lordships have had the advantage of much fuller argument and the citation of a wider range of authorities than the Divisional Court. I respectfully suggest that, in coming to this conclusion, the Lord Chief Justice elided the domestic law doctrine of act of state, which has often been stated in the broad terms he used, with the international law obligations of this country towards foreign heads of state, which section 20 of the 1978 Act was intended to codify. In my view, article 39.2 of the Vienna Convention, as modified and applied to former heads of state by section 20 of the 1978 Act, is apt to confer immunity in respect of acts performed in the exercise of functions which international law recognises as functions of a head of state, irrespective of the terms of his domestic constitution. This formulation, and this test for determining what are the functions of a head of state for this purpose, are sound in principle and were not the subject of controversy before your Lordships. International law does not require the grant of any wider immunity. And it hardly needs saying that torture of his own subjects, or of aliens, would not be regarded by international law as a function of a head of state. All states disavow the use of torture as abhorrent, although from time to time some still resort to it. Similarly, the taking of hostages, as much as torture, has been outlawed by the international community as an offence. International law recognises, of course, that the functions of a head of state may include activities which are wrongful, even illegal, by the law of his own state or by the laws of other states. But international law has made plain that certain types of conduct, including torture and hostage-taking, are not acceptable conduct on the part of anyone. This applies as much to heads of state, or even more so, as it does to everyone else; the contrary conclusion would make a mockery of international law.
Estas alegaciones no destruyen la aplicación del principio jurídico "Ubi lex...". Y ni siquiera está, basadas en el Convenio de Viena citado, que dice: "However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist", sin que distinga entre actos conformes o no con el Derecho Internacional
6
LORD STEYN
It is inherent in this stark conclusion that there is no or virtually no line to be drawn. It
follows that when Hitler ordered the "final solution" his act must be regarded as an official
act deriving from the exercise of his functions as Head of State. That is where the
reasoning of the Divisional Court inexorably leads. Counsel for General Pinochet
submitted that this conclusion is the inescapable result of the statutory wording.
My Lords, the concept of an individual acting in his capacity as Head of State involves a rule of law which must be applied to the facts of a particular case. It invites classification of the circumstances of a case as falling on a particular side of the line.
Ya hemos visto que esta pretendida línea viola el principio "Ubi lex...".
It contemplates at the very least that some acts of a Head of State may fall beyond even the most enlarged meaning of official acts performed in the exercise of the functions of a Head of State. If a Head of State kills his gardener in a fit of rage that could by no stretch of the imagination be described as an act performed in the exercise of his functions as Head of State. If a Head of State orders victims to be tortured in his presence for the sole purpose of enjoying the spectacle of the pitiful twitchings of victims dying in agony (what Montaigne described as the farthest point that cruelty can reach) that could not be described as acts undertaken by him in the exercise of his functions as a Head of State. Counsel for General Pinochet expressly, and rightly, conceded that such crimes could not be classified as official acts undertaken in the exercise of the functions of a Head of State. These examples demonstrate that there is indeed a meaningful line to be drawn.
Estas alegaciones violan el citado
Article 31.1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.
Tal Jefe de Estado o Soberano o diplomático sería inmune ante los tribunales penales británicos aunque asesinara a su jardinero, mientras estuviera en activo, no lo sería si el asesinato se consumara cuando dejó de estar en activo, pero sí lo sería cuando dejara de estar en activo con respecto al asesinato cometido gubernamentalmente cuando estaba en activo.
How and where the line is to be drawn requires further examination. Is this question to be considered from the vantage point of the municipal law of Chile, where most of the acts were committed, or in the light of the principles of customary international law? Municipal law cannot be decisive as to where the line is to be drawn. If it were the determining factor, the most abhorrent municipal laws might be said to enlarge the functions of a Head of State. But I need not dwell on the point because it is conceded on behalf of General Pinochet that the distinction between official acts performed in the exercise of functions as a Head of State and acts not satisfying these requirements must depend on the rules of international law. It was at one stage argued that international law spells out no relevant criteria and is of no assistance. In my view that is not right. Negatively, the development of international law since the Second World War justifies the conclusion that by the time of the 1973 coup d'etat, and certainly ever since, international law condemned genocide, torture, hostage taking and crimes against humanity (during an armed conflict or in peace time) as international crimes deserving of punishment. Given this state of international law, it seems to me difficult to maintain that the commission of such high crimes may amount to acts performed in the exercise of the functions of a Head of State.
The essential fragility of the claim to immunity is underlined by the insistence on behalf of General Pinochet that it is not alleged that he "personally" committed any of the crimes. That means that he did not commit the crimes by his own hand. It is apparently conceded that if he personally tortured victims the position would be different. This distinction flies in the face of an elementary principle of law, shared by all civilized legal systems, that there is no distinction to be drawn between the man who strikes, and a man who orders another to strike. It is inconceivable that in enacting the Act of 1978 Parliament would have wished to rest the statutory immunity of a former Head of State on a different basis.
Es cierto que el inductor también es autor, pero, autor o inductor, es inmune opus lege.
On behalf of General Pinochet it was submitted that acts by police, intelligence officers and military personnel are paradigm official acts. In this absolute form I do not accept the proposition. For example, why should what was allegedly done in secret in the torture chambers of Santiago on the orders of General Pinochet be regarded as official acts? Similarly, why should the murders and disappearances allegedly perpetrated by DINA in secret on the orders of General Pinochet be regarded as official acts?
Porque fueron ejecutados -si lo fueron- como actos de gobierno, actuando Pinochet como funcionario y no como particular.
But, in any event, in none of these cases is the further essential requirement satisfied, viz. that in an international law sense these acts were part of the functions of a Head of State. The normative principles of international law do not require that such high crimes should be classified as acts performed in the exercise of the functions of a Head of State.
Tampoco los excluyen.
For my part I am satisfied that as a matter of construction of the relevant statutory provisions the charges brought by Spain against General Pinochet are properly to be classified as conduct falling beyond the scope of his functions as Head of State. Qualitatively, what he is alleged to have done is no more to be categorized as acts undertaken in the exercise of the functions of a Head of State than the examples already given of a Head of State murdering his gardener or arranging the torture of his opponents for the sheer spectacle of it. It follows that in my view General Pinochet has no statutory immunity.
Counsel for General Pinochet further argued that if he is not entitled to statutory immunity, he is nevertheless entitled to immunity under customary international law. International law recognizes no such wider immunity in favour of a former Head of State. In any event, if there had been such an immunity under international law Section 20, read with Article 39(2), would have overridden it. General Pinochet is not entitled to an immunity of any kind.
Yo no veo tal anulación. Probablemente lo que quiere decir el Lord es que la ley británica prevalece sobre la internacional, y por consiguiente la inmunidad habría que basarla en la ley de 1978.
7 . El nudo de la cuestión estriba en que unos Magistrados opinan que todo acto de un Soberano o Jefe de Estado o Diplomático realizado como acto de gobierno goza de inmunidad cuando tales personas dejan de tener los citados cargos, mientras que otros Magistrados opinan que para que dichos actos sigan gozando de inmunidad deben ser conformes con el Derecho Internacional.
Haciendo un inciso, es de ver la diferencia cualitativa entre la resolución de los Magistrados británicos, seria, rigurosa, ajustada a los hechos y al derecho, y las de los Magistrados españoles, con sus "tribunales subsidiarios" y demás escandalosos y prevaricadores disparates vistos en "Prevaricaciones en el Caso Pinochet"..
La pregunta que viene enseguida a la mente del lector es: "Si los actos de los Soberanos o Jefes de Estado o Diplomáticos fueran siempre conformes con el Derecho Internacional, ¿para qué demonios precisarían de inmunidad?.
El diplomático del ejemplo de Lord Steyn actúa oficialmente, gubernativamente, cuando asesina a su jardinero creyéndolo un espía peligroso, o cuando secuestra a una persona y la tortura para arrancarle secretos importantes para el gobierno que representa, o cuando atenta contra y hasta asesina a un enemigo político de su gobierno. Goza de inmunidad cuando deja su cargo. No actúa oficialmente, gubernativamente, cuando sus crímenes tienen por objeto su interés privado, por ejemplo el narcotráfico, que no beneficia a su gobierno sino a él personalmente. En este caso no goza de inmunidad cuando deja su cargo.
Creo que es evidente que, mientras no se modifique la ley, la inmunidad es innegable, ya que la misión de los jueces no es legislar, modificar la ley, sino aplicar la vigente.
El resumen más acertado fue el de MR. JUSTICE COLLINS en la resolución de la High Court:
66. There is, in a case such as this, a great temptation to say, having regard to the seriousness of the matters: if he is responsible he deserves to pay for the terrible crimes that have been committed; if the Spanish courts have jurisdiction, why not send him there to be tried? But one cannot twist the law to meet the apparent merits of any individual case. Accordingly, and for the reasons given by my Lord, I agree with the conclusion that he has reached.
8 . En proyecto queda estudiar la resolución del Ministro de Interior británico, Mr. Straw.
