38 Londres Street, page 5
Moreiras passed the Pinochet case to Javier Balaguer, the prosecutor attached to Court No. 6. He recognised its significance and, in two short lines, recommended that it proceed. ‘I don’t know how deeply he shared the ideas on torture and genocide, but he admitted the case,’ said Castresana. Balaguer’s decision was not appealed, so the Pinochet case was now live.
The next stage was to gather witness statements and other evidence. For two years Castresana worked with victims, and with La Vicaria de la Solidaridad, which the Archbishop of Santiago set up in 1976 to gather evidence on detentions, torture and disappearances. La Vicaria played a vital role in accountability and justice in Chile. Castresana’s Pinochet case was assisted by a decision of President Clinton’s Attorney General, Janet Reno, to respond positively to a request for assistance from the Audiencia Nacional, providing evidence available in the United States. This was ‘a green light’ for other governments, Garcés believed, a signal from ‘big brother’ that it was OK to open the door. Stories ran in the Spanish media, on the Soria and Letelier cases, but without much traction.
The Chilean case was proceeding in parallel to Castresana’s Argentina case, before Court No. 5 and Judge Garzón. Castresana sensed Garzón was the more active judge, managing the case with an ‘iron hand’. He established a link between the two cases, one that would become crucial: Pinochet’s Operation Condor targeted opponents in Argentina, which meant Garzón’s jurisdiction to investigate a killing in Argentina allowed him to follow the trail to Chile.
General Pinochet, as Commander-in-Chief of the Chilean Army, was alert to the cases and the legal risks. His concerns increased exponentially in February 1997 when Garzón issued an arrest warrant for the former Argentine President, General Galtieri. Pinochet sent General Torres Silva – his favourite prosecutor, and later Army auditor-general – to Madrid, where he persuaded the new chief prosecutor at the Audiencia Nacional, Eduardo Fungairiño, to try to stop both cases.
General Silva’s visit was clandestine, but it caused Fungairiño to submit a confidential report to the council of public prosecutors. He argued there was no Coup in Chile, merely a temporary suspension of the constitutional order. News of the report leaked, causing a scandal. Fungairiño changed tack, replacing Balaguer, a progressive prosecutor, with the more conservative Jesús Peláez, said to be a member of Opus Dei, a conservative Catholic group. Fungairiño now encouraged Peláez to challenge the jurisdiction of the investigating judges in Courts No. 5 and 6, and to appeal to the full Criminal Chamber of the Audiencia Nacional.
Peláez was ‘absolutely against us,’ Garcés recalled.
He was ‘extremely conservative,’ said Castresana.
Eduardo Fungairiño started a case before the Audiencia Nacional to challenge the jurisdiction of the Spanish courts to investigate Pinochet and Argentina’s General Galtieri. It was 1998. The hearing was set for the end of October.
As the case was pending, someone contacted Juan Garcés in Madrid and everything changed.
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‘It was sometime around Thursday, 8 October,’ recalled Garcés. ‘I think it may have been my friend Victor Pey who first alerted me, a small article in the Chilean press that Pinochet was in England for a medical intervention.’ Human-rights organisations, including Amnesty International, who wanted Pinochet arrested, were also in touch.
Garcés had to move quickly. Over the weekend – Saturday, 10 and Sunday, 11 October 1998 – he prepared a document for Judge García-Castellón, in Court No. 6, the more cautious judge, who had the Chilean case. Garcés had already filed evidence supporting Pinochet’s role in genocide, terrorism and torture. He now prepared a simple request to be allowed to question Pinochet in London about these crimes. The process was known as ‘auto de procesamiento’.
Garcés worked alone at home. ‘I had all the papers I needed.’ As he drafted the request, he received a phone call from London from an unknown person, who confirmed the urgency. ‘Pinochet is in London. We can’t get him arrested by the UK authorities. The only chance to arrest him is an order from a Spanish judge.’ The caller, he would learn, was Andy McEntee, the chair of trustees of Amnesty International UK.
Garcés contacted Oscar Soto, President Allende’s personal doctor, to see how long he thought Pinochet would remain in hospital. Dr Soto doubted Pinochet would be able to travel immediately. Garcés was relieved, as Monday, 12 October was National Day in Spain and the courts were closed.
On Tuesday, 13 October, first thing in the morning, Garcés went to the Audiencia Nacional. He met with Judge García-Castellón and asked him to request the authorities in London to allow him to question Pinochet. García-Castellón wasn’t closed to the idea, but he wouldn’t say he’d act on it, so Garcés worried he would do nothing.
‘I knew his temperament so I wasn’t sure he’d send the request. He’d moved matters forward, allowed much evidence to be gathered, but he was under pressure from the Spanish legal establishment.’ Castresana and Garcés expected that Chief Prosecutor Fungairiño would do all he could to stop the Chilean case. ‘I worried the confluence of pressures would put the brakes on,’ said Garcés. ‘So I prepared an alternative route, in case García-Castellón did nothing.’
This involved Judge Garzón in Court No. 5, who was investigating crimes in Argentina. Garcés knew that Operation Condor offered a link between Argentina, Chile and Pinochet. ‘I didn’t really know Judge Garzón, but I’d attended a lecture he gave on crimes in Argentina, including Condor, so I knew his approach.’ Garzón seemed more likely to act.
A few months earlier, Garcés had filed another case before Judge Garzón, about a 1976 killing in Argentina, part of Operation Condor. Edgardo Enríquez Espinoza, a Chilean, was arrested in Buenos Aires, then tortured and disappeared. (Espinoza’s brother Miguel, the founder of MIR, was killed by the DINA in 1974.) ‘I approached Judge Garzón on this case, in relation to his investigation of Operation Condor.’ Garcés had witness testimony and other evidence of links between the Chilean and Argentine intelligence services, and he hoped this might nudge Garzón towards Pinochet.
‘I went to see Garzón on Wednesday, 14 October. I spoke in a very direct way, told him that Pinochet was in England, that I’d done the preparatory work to allow him to intervene, and this was the moment to act.’ The political situation in Britain was ripe, Garcés explained to him. There was a Labour government and an engaged Foreign Secretary, Robin Cook, committed to an ‘ethical foreign policy’, one with human rights at its heart.
‘I said to Garzón: “Please send a request for letters rogatory, to question Pinochet about his role in Operation Condor in Argentina.” ’ (Letters rogatory is a formal request from a court in one country to seek judicial assistance from a court in another country, for example on matters of evidence – it was used by US authorities in the Townley case.) Garzón suggested he was open to the idea, but would only act if he received a formal, written request.
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Baltasar Garzón was in his eleventh year as investigating judge on Court No. 5 of the Audiencia Nacional when Garcés visited him on Wednesday, 14 October. A square man, with a shock of strong hair and a piercing gaze, Garzón had a record as a fearless investigator of high-profile drug and terror cases. When I first paid him a visit many years later, he remembered meeting Garcés. It was on the Wednesday, and Judge García-Castellón may have been absent.
‘I had spent five years investigating Operation Condor and crimes committed in Argentina,’ Garzón told me. He knew that there were Chilean victims of Pinochet in Argentina, but also that Judge García-Castellón in Court No. 6 had the lead in investigating these matters. Garzón didn’t want to tread on his colleague’s toes. ‘I accepted the new request from Garcés, but wanted to focus on the Argentine aspect, not Pinochet,’ he recalled. ‘But of course I knew that the case Garcés brought concerned Chilean aspects of Condor, so it came within my jurisdiction on killings in Argentina.’
‘That day, I arrived at my office at the usual time,’ Garzón told me, ‘about half past eight in the morning. Juan Garcés arrived at ten. He asked to see me, I agreed. He came into my room and said very simply: “Pinochet is in London.” ’ He brought a short document that set out allegations against Pinochet, ‘one of the persons most responsible’ for the crimes of Operation Condor. This was enough to allow Garzón to act, and Garcés gave him the document that described Pinochet’s role in creating the DINA, with information on the killings of Orlando Letelier and Carmelo Soria. Garcés also had Contreras’s testimony, implicating Pinochet as directly involved in authorising DINA’s actions in Argentina, under Operation Condor.
‘I want to take a statement in person from Augusto Pinochet as soon as he has recovered from his medical intervention,’ Garcés told Garzón. Garcés asked him to request the British authorities to allow this, and to make sure they didn’t let Pinochet leave before he’d been questioned about his role in Operation Condor.
Garzón hesitated. ‘The real Pinochet case is before the Judge in Court No. 6, not my Court,’ he told Garcés. ‘Ask García-Castellón to make the request, as I only have a small part of the Pinochet case.’ This was courteous and collegial.
‘Why not suggest to García-Castellón that if he doesn’t want to act then I will,’ said Garzón, using Operation Condor as the motive. ‘If you tell him I have jurisdiction to act, I am sure that he will give you the order you want.’ In the meantime, Garzón added, he’d prepare a draft of the request that Garcés hoped for.
Garcés had another concern: that García-Castellón would want Scotland Yard to confirm that Pinochet really was in London. This was the catalytic moment for Garzón, who thought that with any delay Pinochet might be gone. I have ‘the means and the capacity to take on this issue,’ he said to himself, and decided to act.
That afternoon, Wednesday, 14 October, Garzón prepared a short note to be sent to London, via Interpol. Is Pinochet in Britain, and if so where? How is Pinochet’s health? Please allow me, he said, to take a statement on his role in Operation Condor, and please ‘guarantee that Sr. Pinochet Ugarte will remain on British soil until the moment of his statement’.
Initially, Scotland Yard brushed away the request in a fax. ‘We don’t understand why you need to know, or why you are asking this,’ Garzón recalled their response. ‘We are not required to answer your questions.’ The dismissive tone spurred him to go further.
Fortuitously, or perhaps otherwise, at this very moment, Garzón received a phone call out of the blue. ‘John Dew called me, from the British embassy.’ The senior diplomat had come to know Garzón on a money-laundering matter in Gibraltar, the enclave in southern Spain that has caused much friction with Britain. Over a friendly lunch at Las Reses, an old-fashioned restaurant in Madrid known for tripe and colourful posters of bullfights, Garzón suggested ways of enhancing cooperation on Gibraltar. He liked Dew. ‘Typical English. Very formal. Tall. Tie. Correct.’
On Garzón’s account, Dew called to let him know he was aware of Scotland Yard’s rebuff, and this would not be the final word. ‘You will receive a new answer from Scotland Yard,’ Garzón recalled Dew saying, as you are seen as a friend of Britain. ‘Everything will be fine, as we have a very positive cooperation,’ Dew said he told Garzón, recalling the conversation when we met in his garden in Oxford (he is retired, producing naïve landscapes and rather fine drawings of his times in Havana, Bogota and north Oxford). Garzón assumed that someone higher up must have authorised the call, as British diplomats tended not to go off on frolics of their own.
Later that same day, on the Wednesday, Garzón received a second fax from Scotland Yard, with a more cooperative tone. ‘It confirmed that Pinochet was in a clinic in central London, and asked: “What do you really want from us?” ’ Garzón didn’t yet know the answer to the question, so he waited until the next morning to reply. By now, Juan Garcés had provided draft requests for letters rogatory: one copy went to Judge García-Castellón, on crimes linked to Chile; the other went to Judge Garzón, on crimes committed in Argentina that were linked to Operation Condor and Pinochet.
With a written request from Garcés, Garzón believed he had the authority to act. On the morning of Thursday, 15 October, he wrote to Scotland Yard to say that he would issue letters rogatory, to be allowed to interview Pinochet about his role in Operation Condor.
Scotland Yard responded as Garzón hoped, with details of Pinochet’s location at a clinic in central London. Garzón said he would travel to London on Monday, 19 October. ‘To interview Pinochet.’
British newspapers were reporting that Pinochet was in London, and that Garzón was interested in speaking to him. ‘I have not made a decision,’ the Guardian quoted Garzón as having said. ‘I shall be studying the position in the next few days,’ he added, having been asked to request a rogatory commission. The newspaper suggested that there was ‘no question’ of seeking Pinochet’s extradition to Spain.
The next morning, Friday, 16 October, El País reported García-Castellón’s negative response to a query as to whether he planned to arrest Pinochet: ‘I know that would be a very spectacular action, but I am not like this. I must have strong evidence in front of me, so far I do not have it.’
Early that Friday afternoon, in his office in Madrid at about a quarter to two, Garzón received word that Pinochet might leave London as early as the following day, Saturday, 17 October, and return to Chile.
Did Scotland Yard give you that information?
Yes, Garzón told me, by fax. ‘Basically, they told me that Pinochet would leave on Saturday, the next day, so there was no point in coming to London on the Monday, as I intended. We cannot detain him, they said, tell us what to do.’
Until that moment, Garzón intended only to send a list of the questions he wished to put to Pinochet. The fax from Scotland Yard, with its new information, prompted an instant change in direction. He decided then and there, on his own, without consultation or much reflection, to issue an arrest warrant. ‘With questions alone, I wouldn’t have any way to make him stay, to prevent him from leaving.’ Hence his request for arrest and extradition, and to stop Pinochet from leaving. Garzón acted on instinct.
The fax from Scotland Yard caused you to change your mind?
‘Yes.’
And that information was a direct consequence of the earlier conversation with John Dew?
‘Yes. Why did I change my mind? When I was told this guy was leaving, I could have said, OK, there is nothing I can do, and García-Castellón won’t do anything. But that would have gone against everything I was doing on universal jurisdiction. It was easier to do nothing, but instead I decided to jump into the vacuum.’
It was Friday afternoon in Spain, when most people were heading off for the weekend. Garcés had visited earlier that day, with a list of questions that Garzón could include in the request for the letters rogatory. The only employee still around was Jesús Sánchez, an assistant clerk. Garzón asked him to stay – ‘it always happens to me, I’m always the last one!’ Sánchez complained – to gather the files on the Operation Condor case. They were locked away, Sánchez told him, not available.
Garzón pondered what he could do without files. ‘I went to my office and shut the door, to be alone, to think about what to do. One option was to just…’
Forget about it and go home?
‘Impossible!’ Garzón snapped. ‘Option A was just to ignore the matter and leave the office. Option B was to write to Scotland Yard, thank them for their cooperation, and tell them it was now too late to do anything.’ There was a third option: ‘Here was a real chance to arrest Pinochet. So, I decided to change direction, to write an arrest warrant, and send it to London. I thought I would never forgive myself…’
If you did nothing?
Garzón nodded. ‘I assumed the effort could fail, but I had to try. So I just started to write…’
On a typewriter?
‘By hand, on a sheet of paper, with a pen. I did everything from memory.’
What were the crimes?
‘I focused on state terrorism, torture and genocide. I wrote in the name of one of the victims, Edgardo Enríquez Espinosa, who was kidnapped in Chile on 10 April 1976, and mentioned seventy-nine other cases of Chileans who had been disappeared…’ Garzón’s voice trailed off.
As we spoke, we had before us a copy of the request for the arrest and extradition of Pinochet, which Garzón had drafted in Spanish. It laid out the facts, succinctly and starkly. As head of state, Garzón wrote, Pinochet was directly involved in the physical elimination, disappearance, kidnapping and torture of thousands of individuals. He relied on the Rettig Report, describing the roles played by Pinochet and the DINA, and Operation Condor.
The killed included Carmelo Soria, the UN diplomat.
The disappeared included a twenty-three-year-old philosophy student, a dual Chilean/French national called Alfonso Chanfreau.
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By October 1998, when the matter reached Garzón, the story of Alfonso Chanfreau was well known across Chile. His widow, Erika Hennings, shared with me a more personal account, in a voice and spirit that were pained, gentle and committed, but not sad or broken.
‘After fifty years, my struggle has changed but not the principles or emotions.’ Alfonso’s disappearance was profoundly unjust, impunity made real. ‘What gives me my voice is to fight for justice and for truth.’
Erika Hennings was born in 1951, in Santiago, into a militant family, a Catholic father and a mother from a communist family. ‘In the 1960s, when society was politicised, I became a militant communist, for a time.’ During schooldays she and a friend visited another school, to offer support during a teachers’ strike. ‘That was where I met Alfonso, the jefe de la toma, the head of the occupation of the school. He was tall, wore a nice white shirt, was cleaning the tables in a classroom. We danced. I thought he was handsome, ahhhh, so handsome!’
