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Case:
J.C.P.1993, IV, 2643 Case Royaume-Uni de Grande-Bretagne et d’Irlande du Nord et Gouverneur de Hong-Kong
Date:
15 October 1993
Translated by:
J T Brown
Copyright:
Professor Sir B. S. Markesinis

J.C.P.1993, IV, 2643
Case Royaume-Uni de Grande-Bretagne et d’Irlande du Nord et Gouverneur de Hong-Kong

15 October 1993

(…)

Concerning the jurisdiction of the administrative courts:

Given that a decision refusing a demand for extradition may be detached from the conduct of diplomatic relations between France and the applicant State;

Concerning the jurisdiction of the Conseil d’Etat at first and last instance:

Given that (i) the refusal of an application for extradition has a field of application which extends beyond the area of jurisdiction one administrative court; and (ii) as a consequence, pursuant to Article 2-3 of the Decree of 30 September 1953 the Conseil d’Etat has jurisdiction to hear the petition at first and last instance;

Concerning the admissibility of the petition:

Given that (i) the decision of the Garde des Sceaux was made in reply to an informal appeal (“recours gracieux”) made jointly in the name of the Government of the United Kingdom and Northern Ireland and the Governor of the Royal Colony of Hong Kong; (ii) the petitioners have shown an interest which gives them standing to contest the refusal of their request by the Garde des Sceaux; (iii) their petition was preceded by no approach to the Prime Minister; (iv) such petition could be presented by an advocate admitted before this Court; and (v) it follows that the Garde des Sceaux and M. Saniman have no grounds upon which to claim that it was not admissible;

Concerning legality:

Given that, pursuant to Articles 27 and 28, the European Extradition Treaty of 13 December 1957 does not apply to the Royal Colony of Hong Kong, where there remains in force the amended Franco-British Extradition Treaty of 14 August 1876, which applies, pursuant to Article 16 “in the colonies and other foreign possessions of the two High Contacting Parties”, among which is the Royal Colony of Hong Kong, held by Great Britain by virtue of the amended Treaty with China of 29 August 1842;

Given that (i) the request for extradition was sent, as required by the Treaty of 14 August 1876, by the British Government; (ii) it appears from the documents before the Court that, as provided by Article 6 of the said Treaty, it was sent by a diplomatic agent;

Given that, by a judgement dated 30 October 1990, the Indictment Chamber (“chambre d’accusation”) of the Versailles Appeal Court, giving judgement on the request for the extradition of M. Saniman, gave an unfavourable opinion on twenty-eight of the thirty-five charges, and a favourable opinion on the other five charges;

Concerning charges 5 and 9:

Given that (i) in these charges M. Saniman is accused of having played a decisive role in the creation of fictitious companies to whom loans were made, hiding the identity of the real beneficiaries to whom such loans were made and in the payment of such sums to these companies; (ii) the fact, if it were established, that certain of the fraudulent actions imputed to M. Saniman occurred after the making of such payments has no influence on the legal analysis (“qualification juridique”) of such acts, which are said to constitute a conspiracy (“entente”) to commit fraud, punishable in both French and British law and mentioned in Article 3 of the Franco-British Treaty of 14 August 1876; and (iii) when, in respect of these charges, the Minister of Justice refused extradition, his decision was tainted with an error of law;

Concerning charges 21, 22 and 23:

Given that (i) although the facts with which M. Saniman was charged and which were described, in a first request for extradition, as "theft of an incorporeal claim” (“créance”), gave rise to an unfavourable opinion of the Indictment Chamber of the Court of Appeal of Paris dated 4 November 1987, the new request for extradition based on a charge of appropriation of assets by deceit contained new facts concerning, in particular, the status of M. Saniman as an agent and as the hierarchical superior of the person who participated in the facts charged; (ii) in the light of the importance of the new facts, the Indictment Chamber of the Court of Appeal of Versailles was right, in its opinion cited above, to consider that the facts with which M. Saniman was charged constituted deceit (“abus de confiance”), and to issue an opinion about them which was favourable to the extradition request of the British authorities; and (iii) when he considered that he was bound on these points by the prior unfavourable decision of the Indictment Chamber of the Appeal Court of Paris, the Minister of Justice tainted his decision with an error law;

DECIDES:

Article 1: The decision refusing the request for the extradition of M. Saniman, notified by a verbal note of 20 March 1992, together with the implicit decision of rejection arising from the silence maintained for more than four months by the Garde des Sceaux, Minister of Justice, concerning the informal appeal against this decision, are quashed.

Article 2 (…)

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