12
missing.
DE: CXK/007/MEG/JPB
defence shall artificially increase the likelihood that they ascape punishment.
None of these two solutions is satisfactory.
The confirmation of the refusal to extradite Mr Sanisan leads necessarily
to guaranteeing his impunity. It will be unfortunate, in addition, that the
public say believe that international cooperation does not permit to punish this
type of delinquency.
This outcome would be very detrimental, especially as the reasons of the
French government seems to be challengeable from a legal point of view.
IL THE LAY
A.
The decision taken by the French government to refuse an extradition despite such positive advice of the Chambre d'Accusation, is certainly capable of reexamination by the government.
It does not create a right and it is not conclusive vis a vis all parties {"erga_cenes").
It is, furthermore, certain that, as it prejudices the Requesting State, it may be subject to a "recours gracieux" as this request (and even, as the case
say be, a contentious recourse).
In this respect, it appeared recently that a decision of that type can only be justified by reasons ("motivée"). This is a trend appearing in certain recent treaties and in particular the European Extradition Convention of 13th December 1957, ratified by France in 1986, whose article 18, 2nd paragraph, says expressly: "Any refusal wether total or in part shall be justified ("motivd")".
This is also the explicit position of the French government:
In a note to the Count of Ministers of 10th November 1932, the Minister of Justice astated that it was appropriate for the government to appraise the requests presented by foreign states in the light of four criteria, sach of which, taken in isolation, could justify a refusal to extradite:
the nature of the political and judicial system of the requesting State.
Page