DUE PROCESS FOR PINOCHET?

The past month has been a momentous one in Chile's historic prosecution of General Augusto Pinochet Ugarte. On December 1, in a landmark step, investigating Judge Juan Guzman indicted the former dictator on kidnapping and murder charges, ordering that Pinochet be placed under house arrest. But later in the month, in a technical ruling, the charges against Pinochet were dropped.

Both the Chilean appellate court that initially dismissed the charges, and the Chilean Supreme Court, in affirming this ruling, found that Judge Guzman had not properly followed Chile's rules of criminal procedure. In particular, the courts held, Guzman had not sought to question Pinochet prior to charging him, an omission that infringed on Pinochet's right to a defense.

It would seem easy enough to remedy the procedural defects of the December 1 indictment: simply question Pinochet and then reinstate the charges against him. Indeed, in what appeared to be an effort to expedite this process, the Chilean Supreme Court decision that dismissed the charges specifically ordered that Pinochet be interrogated within twenty days.

But unfortunately the rather trivial due process issue of Pinochet's questioning is linked to a much more critical due process issue, one that may, in fact, prove to be decisive in these proceedings: Is Pinochet mentally and physically fit to stand trial?

Now eighty-five years old, Pinochet reportedly suffers from diabetes, uses a pacemaker, and has suffered mild strokes. Under Chilean law, which requires that defendants over the age of seventy be given psychological tests to ascertain their fitness for trial, Pinochet must submit to a medical examination.

While the narrow provisions of Chilean law only bar trial if the accused is found to be mentally unbalanced, Pinochet's lawyers are apparently seeking his exemption from prosecution on broader due process grounds. Relying on Chilean constitutional protections of the right to a defense, Pinochet's lawyers have suggested that his health is too poor for him to participate effectively in his own defense.

If Pinochet avoids trial in Chile for medical reasons, it will be the second time doctors have rescued the former dictator from criminal prosecution. Last March, after undergoing medical examinations in London, Pinochet was released by British authorities from 503 days of house arrest there. Home Secretary Jack Straw, in announcing Pinochet's imminent release from detention, asserted that it was the "unequivocal and unanimous conclusion" of three medical practitioners and a neuropsychologist that Pinochet was "unfit to stand trial."

It is beyond question that even the most rudimentary of due process norms were violated by the death squads for which Pinochet was responsible. Typical of these is the military task force known as the "Caravan of Death" – whose abuses form the basis of the current prosecution of Pinochet – which removed scores of political prisoners from jail and executed them shortly after the 1973 military coup.

Nonetheless, human rights advocates unequivocally support the notion that Pinochet's trial should be carried out with full respect for fundamental due process principles. In our view, the trial of even a notorious human rights criminal would be no victory for human rights if it did not allow the accused the opportunity of a defense.

It should be emphasized, however, that Pinochet's age alone is no bar to his prosecution. Nor should the health problems associated with age necessarily preclude a trial. Rather, to invalidate a trial on due process grounds, a defendant's disabilities must be serious enough to prevent him from participating in his own defense. Only if Pinochet were unable to understand the charges against him, or unable to communicate with his lawyers, or if his memory were so seriously impaired that he could not contribute evidence in his defense, would a trial be unreasonable.

Indeed, a trial can be valid even if the accused is too ill to suffer punishment. A trial in such circumstances is not pointless, since apart from retribution, a criminal verdict also serves the purpose of recognizing the damage inflicted on the victims and providing an accounting of crimes for society as a whole.

A review of similar cases around the world confirms this point. Although Pinochet may be the most infamous of the current crop of geriatric human rights criminals, he is not even the oldest of them. In Australia, an eighty-seven-year-old man now faces extradition to Latvia, where prosecutors have allegedly implicated him in the murder of Jews during the 1941-44 Nazi occupation. Other elderly defendants include Julius Viel, an eighty-two-year-old former SS lieutenant, Karl-Leonhard Paulov, a seventy-six-year-old former Soviet secret police agent, and Paul Touvier, the former intelligence chief of a pro-Nazi militia who was convicted of wartime abuses in 1994, at age seventy-nine.

Perhaps the most prominent example is that of Maurice Papon, who was convicted of ordering the deportation of 1,560 people while serving as secretary-general for Jewish affairs in Bordeaux during WWII. Papon was eighty-seven years old when his trial commenced and had recently undergone triple bypass heart surgery. Although Papon's poor health caused several delays, the trial was finally completed on April 2, 1998, and Papon, then aged eighty-eight, was sentenced to ten years in prison.

Those who would like to see Pinochet join Papon behind bars have raised a number of questions about the planned medical tests. One involves the proper timing of the tests. If the tests are held before Pinochet is questioned, and the results show that Pinochet is unfit for trial, he may never be re-indicted.

In this respect, the most recent ruling of the Chilean Supreme Court is extremely troubling. Released on December 26, the day before Pinochet was to be questioned (and then presumably charged once more), the court's brief opinion stated that Pinochet should first undergo tests to determine his fitness to stand trial. Although the ruling was styled as a mere clarification of the court's earlier decision to dismiss the criminal charges against Pinochet, the court actually reversed course on this critical issue, giving medical testing priority over questioning.

Other disputed issues include the location in which the tests are to be held, with a military hospital now appearing as the likely venue. In considering such issues, it bears emphasizing that if Pinochet does escape trial on due process grounds, the basis for the court's decision to suspend the prosecution must be unimpeachable.

It would be a tragic step backwards for human rights if Pinochet were saved from criminal liability on shaky or questionable grounds. Not only must justice be done in Chile, it must be seen by the Chilean people, and the world, to be done.