The First Pinochet Case: Immunity of a Former Head of State

1999 ◽  
Vol 48 (1) ◽  
pp. 207-216 ◽  
Author(s):  
Colin Warbrick ◽  
Dominic McGoldrick ◽  
Hazel Fox
Keyword(s):  
Criminal Liability ◽  
Sovereign Power ◽  
Criminal Proceedings ◽  
State Immunity ◽  
Head Of State ◽  
House Of Lords ◽  
Civil Proceedings ◽  
Protection Of Human Rights ◽  
The Individual ◽  
Reversal Of Fortune

The case of Pinochet has aroused enormous interest, both political and legal. The spectacle of the General, whose regime sent so many to their deaths, himself under arrest and standing trial has stirred the hopes of the oppressed. His reversal of fortune, loss of liberty with a policeman, on the door, has been heralded by organisations for the protection of human rights as one small step on the long road to justice. For lawyers generally, the House of Lords' majority decision of 1998 that General Pinochet enjoyed no immunity signalled a shift from a State-centred order of things.1 It suggested that the process of restriction of State immunity, so effectively begun with the removal of commercial transactions from its protection, might now extend some way into the field of criminal proceedings. And it further posed the intriguing question whether an act categorised as within the exercise of sovereign power, so as to relieve the individual official of liability in civil proceedings, may at the same time, as well as subsequent to his retirement, attract parallel personal criminal liability.

Jones v. Ministry of Interior of the Kingdom of Saudi Arabia

2006 ◽  
Vol 100 (4) ◽  
pp. 901-908 ◽  
Author(s):  
Daniel Bodansky ◽  
Elina Steinerte ◽  
Rebecca M. M. Wallace
Keyword(s):  
Saudi Arabia ◽  
Kingdom Of Saudi Arabia ◽  
State Immunity ◽  
House Of Lords ◽  
Civil Proceedings ◽  
Assault And Battery ◽  
Court Of Appeal

Jones v. Ministry of Interior of the Kingdom of Saudi Arabia. Case No. [2006] UKHL 26. At <http://www.publications.parliament.uk/pa/ld/ldjudgmt.htm>.House of Lords, June 14, 2006.The House of Lords handed down judgment in Jones v. Ministry of Interior of the Kingdom of Saudi Arabia on June 14, 2006. The case concerns an action in damages brought by Jones and three other applicants, all UK citizens, falsely accused of involvement in bombings in Riyadh in 2001 and 2002. The four allege that they were repeatedly tortured while in prison in Saudi Arabia and that they suffered severe psychological and physical harm as a result. Seeking aggravated and exemplary damages from Saudi Arabia's Ministry of the Interior and the Saudi officials allegedly responsible, the applicants filed claims of, inter alia, torture, assault and battery, trespass to the person, and unlawful imprisonment. In the proceedings before the Court of Appeal, Saudi Arabia claimed immunity on its own behalf and on that of its officials. The Court of Appeal agreed with the former but denied the latter; all the involved parties appealed the decision. The House of Lords agreed with Saudi Arabia by upholding state immunity in civil proceedings brought against a state and its officials in a different country for alleged torture.

Diplomatic Immunity, Head of State Immunity, State Immunity: Misconceptions of a Notorious Human Rights Violator

1999 ◽  
Vol 12 (2) ◽  
pp. 361-371
Author(s):  
Jürgen Bröhmer
Keyword(s):  
Human Rights ◽  
Human Rights Violations ◽  
State Immunity ◽  
Head Of State ◽  
House Of Lords ◽  
Diplomatic Immunity

This decision of the House of Lords is significant because it is the first decision of a major court of an important country refusing to grant a former head of state immunity from adjudication in the context of alleged gross violations of human rights. It is shown that state immunity, diplomatic immunity and head of state immunity are to be distinguished and the rules pertaining to head of state immunity are explained. Whereas the author agrees with the result of Lords' decision, he disagrees with the reasoning because the majority circumvented the immunity question by artificially qualifying the alleged human rights violations of General Pinochet as private acts.

scholarly journals CORRUPTION RISKS IN CRIMINAL PROCEEDINGS

2020 ◽  
pp. 293-299
Author(s):  
С. С. Мірошниченко
Keyword(s):  
Criminal Liability ◽  
Necessary Condition ◽  
Public Confidence ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Ability To Act ◽  
Head Of State ◽  
European Development ◽  
The Government ◽  
The Moment

The relevance of the article is that today our state is acutely aware of the problem of corruption, which is a threat to the rule of law, law and order, rights and freedoms of citizens, as well as an obstacle to sustainable pro-European development. To solve this problem, it is necessary to create and implement a number of anti-corruption measures that will not only eradicate corruption as a phenomenon, but will also prevent the emergence of conditions that will contribute to its emergence. The implementation of such a process is a necessary condition for the formation of sustainable public confidence in the government, improving the lives of citizens, ensuring the growth of Ukraine’s economic potential. The specifics of the civil service often leads to a conflict of interests of citizens, social groups, society, the state as a whole, the collision of which causes various conflicts, and sometimes leads to corruption offenses. The purpose of the article is to study and analyze in detail the corruption risks in criminal proceedings. Corruption risks in criminal proceedings have been studied and analyzed in detail. It has been determined that any entity that has discretionary powers the ability to act on its own, but within the law is prone to corruption. Such entities may be the head of state, deputies, officials, doctors, administrators, etc. However, law enforcement officers and judges conducting criminal cases can also benefit illegally. Thus, they also belong to the category of persons who have corruption risks. It is determined that the types of corrupt payments can be money, jewelry, payment for services, employment of relatives, vacation vouchers, home or car repairs. In particular, there are some payments that are in demand among the staff of investigative units: printers, scanners, paper, other consumables, payment for fuel both to travel to the scene and for personal purposes of the investigator. The stage of consideration of a criminal case in court begins from the moment the judge receives the case and ends with the entry into force of the verdict in this case. The only subject of corruption risk at this stage is a judge who has the authority to revoke or change the measure of restraint, to replace the criminal qualification from a more serious offense to a less serious one, to appoint a minimum term of imprisonment, to release from criminal liability.

The Pinochet Case No. 3

1999 ◽  
Vol 48 (3) ◽  
pp. 687-702 ◽  
Author(s):  
Colin Warbrick ◽  
Dominic McGoldrick ◽  
Hazel Fox
Keyword(s):  
United Kingdom ◽  
International Crime ◽  
Criminal Proceedings ◽  
The United Kingdom ◽  
Head Of State ◽  
House Of Lords

The decision of the Appellate Committee of the House of Lords, given on 24 March 1999,1 confirms, by the impressive vote of 6 to 1, the earlier majority ruling that a former head of state enjoys no immunity in extradition or criminal proceedings brought in the United Kingdom in respect of the international crime of torture.

Certain Criminal Proceedings in France; (Republic of the Congo v. France)

2021 ◽  
Vol 191 ◽  
pp. 172-218
Keyword(s):  
Diplomatic Relations ◽  
Criminal Proceedings ◽  
International Court Of Justice ◽  
State Immunity ◽  
Court Of Justice ◽  
Foreign State ◽  
Head Of State ◽  
Sovereign Equality ◽  
International Court ◽  
Judicial Investigation

International Court of Justice — Provisional measures of protection — Criteria — Prima facie basis for jurisdiction — Forum prorogatum — State consent to jurisdiction of International Court of Justice — Rules of the Court, Article 38 — Risk of irreparable prejudice — Link between risk of prejudice and rights claimed in the Application — Relevance of full extent of possible harm — Relevance of wider political consequences — Urgency — Non-extension and non-aggravation of dispute — Whether provisional measures required to prevent aggravation or extension of dispute — Removal of case from List State immunity — Head of State — Senior officials — Sovereign equality of States — Whether judicial investigation of foreign State officials violating principle of sovereign equality — Whether risk of irreparable prejudice to immunities Diplomatic relations — Risk of irreparable prejudice to diplomatic relations — Whether judicial investigation of foreign State officials constituting risk of irreparable prejudice to diplomatic relations between States Relationship of international law and municipal law — Head of State immunity — Compatibility of domestic criminal powers with principle of head of State immunity — Sovereign equality — Compatibility of domestic criminal powers with the principle of sovereign equality

II. Ex parte Pinochet: Lacuna or Leap?

1999 ◽  
Vol 48 (4) ◽  
pp. 949-958 ◽  
Author(s):  
Colin Warbrick ◽  
Dominic McGoldrick ◽  
Eileen Denza
Keyword(s):  
International Law ◽  
The State ◽  
European Convention ◽  
Private Law ◽  
Criminal Proceedings ◽  
Sovereign Immunity ◽  
State Immunity ◽  
House Of Lords ◽  
Domestic Courts ◽  
Heads Of State

The Lords were not lost in admiration of section 20 of the State Immunity Act 1978. Lord Browne-Wilkinson described it as “strange” and “baffling”. It is certainly true that (as Lord Browne-Wilkinson continued) “Parliament cannot have intended to give heads of state and former heads of state greater rights than they already enjoyed under international law”.1 Nor was it intended that their rights should be inadvertently curtailed. The State Immunity Bill originally introduced into the House of Lords in 1977 would, by reflecting in UK statute law the European Convention on State Immunity2 make huge inroads into absolute sovereign immunity—tottering but not yet demolished through the repeated onslaughts of Lord Denning. The European Convention was however “essentially concerned with ‘private law’ disputes between individuals and States”.3 It was not intended to have any application to criminal proceedings—in so far as lawyers in 1977 even contemplated criminal proceedings in domestic courts against foreign States in their public capacity. It did not deal with the personal privileges or immunities of heads of state. There were no ready-made treaty rules on heads of state and no clear customary rules either.4

IMMUNITY FOR INTERNATIONAL CRIMES: A REAFFIRMATION OF TRADITIONAL DOCTRINE

2002 ◽  
Vol 61 (2) ◽  
pp. 239-294 ◽  
Author(s):  
Xiaodong Yang
Keyword(s):  
International Law ◽  
Foreign Affairs ◽  
Criminal Proceedings ◽  
International Court Of Justice ◽  
State Immunity ◽  
Court Of Justice ◽  
Head Of State ◽  
International Court ◽  
Republic Of The Congo ◽  
Head Of Government

InArrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), decided on 14 February 2002, the International Court of Justice held that an incumbent Minister for Foreign Affairs was immune from criminal proceedings before a foreign domestic court, even if the charges involved crimes against humanity. Human rights advocates might well regard this decision as a serious setback. Decided against a widespread euphoria brought forth by, and largely due to a neglect of an important dictum in, the historic holding in Pinochet No. 3 [2000] 1 A.C. 147, the case serves further to clarify a crucial point of State immunity in current international law. The Pinochet case dealt with the immunity of a former, as opposed to a serving, Head of State. While the majority of the Law Lords only mentioned in passing that the immunity enjoyed by a serving Head of State ratione personae was absolute, the International Court of Justice stated, in unambiguous language, that: … in international law it is firmly established that, as also diplomatic and consular agents, certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal.

Legislative regulation of terrorist crimes in Russia before the October revolution of 1917

2021 ◽  
pp. 68-74
Author(s):  
Vladimir N. Eltsov ◽  
Olesya N. Kozodaeva
Keyword(s):  
Criminal Liability ◽  
Scientific Work ◽  
The State ◽  
October Revolution ◽  
Soviet Period ◽  
Head Of State ◽  
Significant Damage ◽  
History Of ◽  
The Individual ◽  
The Military

The history of the development of legislation on criminal liability for crimes of a terrorist nature in Russia has changed. The modern perception of the criminal phenomenon under consideration, as we note, is reduced to the ideology of violence, the motivation and goals of which depend on what is at its core, for example, politics, religion, racism, and so on. The analysis of legislative acts before the October revolution of 1917 allows us to identify the objects of terrorist influence (representatives of the authorities, the gov-ernment, the head of state) and the methods of committing such criminal at-tacks (deliberate arson, explosion), which in practice had a certain criminal legal significance for the qualification and appointment of punishment. The work focuses on the fact that only some provisions of the articles of the Rus-sian Pravda, the Sudebnik of 1497 and 1550, the Pskov and Novgorod Court Documents, the Cathedral Code of 1649, the Military Code of 1715, the Code on Criminal and Correctional Punishments of 1845 contained signs of terrorist actions. In the course of the study, we conclude that no legislative act of the pre-Soviet period contained a terminological base that defines terrorist crimes as such. The wave of terror in the 19th–20th centuries. it resulted in the mass death of people and the commission of a number of other acts. Deliberate arson and explosions cause intimidation and cause significant damage to the interests of the individual, society and the State. The research in the scientific work shows that terrorism as an independent type of crime has been legally regulated since 1992.

THE IDEA OF COMPROMISE IN THE RUSSIAN CRIMINAL PROCESS AS A MEANING OF COURT ACTIVITY OF CRIME

2021 ◽  
pp. 48-59
Author(s):  
Alexander G. Markelov ◽  
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Final Decision ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Criminal Process ◽  
The Individual

The article proposes an original approach that explains the obvious ideological nature of the use of compromise technologies on certain alternative procedures of the Russian criminal process and is considered as an applied tool for combating crime. Such proposals occur against the background of an obvious trend of humanization of punishment and exemption from criminal responsibility of certain categories of persons. The author claims justifiably that new prospectiveand at the same time conflict-free (compromise) forms of criminal procedure for the rapid resolution of criminal cases have been created in the Russian criminal process.At the same time, the author believes that one of the most important advantages of the use of compromise technologies, provided that there are no aggravating circumstances, is the ability to resolve the criminal-law conflict between the parties concerned quickly and create a favorable environment of reciprocity and understanding. The author believes that the idea of compromise as a certain measure of combating crime has already been implemented in modern procedural algorithms for resolving criminal cases through reduced criminal proceedings in the form of an inquiry, specific (compromise) proce-dures in the form of: the court making a final decision on a criminal case with the consent of the accused with the charge brought by the investigating authorities; the court making a final decision on a criminal case when concluding a pre-trial agreement on cooperation (a deal with justice); proceedings in a criminal case on the appointment of criminal-law measures in the form of a court fine when a person is exempt from criminal liability; a termination of the criminal case and criminal prosecution against the suspect or accused in conjunction with the reconciliation of the parties, a termination of criminal prosecution against the suspect or accused in conjunction with active repentance, a termination of criminal prosecution against the suspect or accused in cases of crimes in the field of economic activity, the election of certain preventive measures and the conduct of the individual investigative actions under the individual compromise circumstances. The author believes that the construction of a legal model of criminal procedure compro-mise as a measure to counter modern crime will contribute to the optimization of the Russian criminal proceedings in the interests of the individual, society and the state as a whole. The work proposes the justification of a new scientific direction - the criminal procedure concept of using compromise - and the prospects for its application in scientific research and practical activities to counter modern crime.

scholarly journals Testimonial immunity as an element of the principle of protection of the rights and freedoms of man and citizen in criminal proceedings

2019 ◽  
pp. 239-248
Author(s):  
M. Kharitonova
Keyword(s):  
Law Enforcement ◽  
Legal Status ◽  
Legal Regulation ◽  
Theory And Practice ◽  
Judicial Reform ◽  
Criminal Proceedings ◽  
Protection Of Human Rights ◽  
Legitimate Interests ◽  
The Individual ◽  
State Defense

In the conditions of formation of the rule of law, one of the biggest manifestations of the democratization of law enforcement activity in Ukraine is the legislative protection of human rights, the creation of guarantees of the rights and legitimate interests of the individual. In this regard, the legal status of participants in criminal proceedings becomes especially important. In addition, the important task of criminal procedural science is to identify and eliminate gaps in the legal regulation of criminal procedural relations. In this regard, studies are currently being conducted to identify legal issues in the field of law and recommendations are being prepared on this basis. It is known that every participant of criminal justice has its own legal status, enshrined in the rules of the Criminal Procedure Code of Ukraine. The procedural status of the victim, suspect, accused legislator and procedural scientist are given much attention, including the issues of securing their rights and legitimate interests. The procedural status of a witness in criminal proceedings requires, in our opinion, additional investigation, including through the prism of securing the rights and legitimate interests of the person in conducting pre-trial investigation and judicial proceedings in criminal proceedings. Research into the problems of the theory and practice of witness immunity is relevant, as various aspects of witness immunity are controversial among both theorists and practitioners. Of course, it is, first and foremost, important for witnesses to have additional opportunities for state defense. The purpose of the article is to address topical issues arising from the reform of criminal procedural legislation, which has created some difficulties in law enforcement practice, including the implementation of the rules governing the institution of immunity of witnesses. In particular, this is explained by contradictory, sometimes unsuccessfully formulated provisions of the legislation itself, which are not always consistent with the implementation of the tasks of judicial reform. In addition, the article raises the problem of witness immunity classification. The authors' different perspectives on the concepts and components of witness immunity are examined. Discussion questions of the classification of the immunity of witnesses are revealed and its classification is divided into categories and categories of testimony provided by witnesses. The result of the study is to provide valid proposals for improving the legal regulation of the institute of immunity of witnesses in criminal proceedings. Witness immunity is a set of rules that exempt certain groups of witnesses from the obligation to testify in criminal proceedings, as well as exempt a witness from testifying against themselves. In this regard, the immunity of the witness is divided into two types of imperative (absolute, unconditional) and dispositive (relative, conditional).

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