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The Independent on Sunday, 10.10.99

Spain attempts to help Pinochet. By Elizabeth Nash

THE decision of a British magistrate to commit the former Chilean dictator Augusto Pinochet for extradition to Spain has caused major embarrassment to the Spanish government. On the eve of the landmark ruling, Spanish diplomats made a clumsy last-minute attempt to sabotage efforts to bring the general to justice.

Amid the celebrations of the general's opponents and congratulations for Judge Baltasar Garzon, who has waged an unremitting campaign to put the ex-dictator on trial in Spain for human rights abuses, there has been anger at Madrid's political interference.

The first inkling of a muddying of legal procedures came in a leak to the Spanish newspaper El Pais, which reported that the government had intervened with Britain's Crown Prosecution Service - acting for Spain - to annul an appeal issued by Judge Garzon in case Friday's ruling was against extradition.

Lodging an appeal in advance was crucial, because General Pinochet would have been freed on the spot if the magistrate, Ronald Bartle, had ruled in his favour. But two Spanish diplomats visited Brian Gibbins of the CPS on Tuesday and told him Madrid had not yet decided whether to appeal. That meant, they said, that Judge Garzon's notice of appeal, lodged on 1 October, was invalid.

Spain's conservative government has made no secret of its unhappiness over the affair, and ministers are dismayed that the prospect of putting the general on trial has moved closer. Chile is putting intense pressure on Spain to find a solution to the growing diplomatic crisis between the two countries.

Madrid denounced the leak as lies and "legally impossible". A government spokesman conceded that officials might have been sent to see Mr Gibbins, but only to "gather information about procedural aspects . But not for a moment was there any request for annulment of the judge's order".

But a letter faxed by Mr Gibbins on Tuesday to Judge Garzon, copied to the Spanish embassy in London, suggested otherwise. In the letter (which El Pais reproduced in Spanish and English), Mr Gibbins describes how he received the Spanish Foreign Ministry official, Miguel Aguirre, and a lawyer at the Spanish embassy in London, Carmen de la Pena.

"Mr Aguirre was unable to say whether in the light of the magistrate's finding against Spain we would be instructed to appeal or not," Mr Gibbins wrote. Asked whether, in the absence of instructions from Mr Aguirre's department, Britain should proceed on the basis of Judge Garzon's written instructions to appeal, "he refused to confirm that I should do so", Mr Gibbins wrote.

"I explained that this position is unacceptable," the British prosecutor told the Spanish diplomat. He continues: "We act as agents for the Spanish State. We can only proceed to appeal if clearly instructed to do so. We cannot regard ourselves as instructed to make an appeal if one part of the Spanish State gives instructions that appear to conflict with those from another part of the Spanish State."

The letter concludes: "Could you ask Madrid to sent clear written instructions that coincide with yours? Could you fax me an urgent letter establishing why your position must prevail, according to Spanish law, over the oral allegations made by Mr Aguirre?"

The government had only to do nothing for Judge Garzon's appeal to fall. Had Mr Bartle's decision gone the other way, General Pinochet would have slipped from Spain's grasp on a bureaucratic technicality.

The Foreign Ministry, however, would hardly be so foolish as to countermand in writing the judge entrusted by Spain to orchestrate the case. Once the stratagem became public, the Foreign Minister, Abel Matutes, had no alternative but to endorse Judge Garzon's notice of appeal. He covered up embarrassment by rebuking the judge for communicating through the National Court fax machine instead of the diplomatic bag.

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