14-MAY-1992 10:36
BRITISH EMBASSY PARIS
16 1 42 66 91 42
P.11
This challenge seems to be contrary to the French Constitution as well as to the rules governing extradition.
a)
The rule, having constitutional value, of the separation of powers, is an obstacle to the executive power making any pronouncement on a final decision of the judicial authority. The problem is not whether the French government can in practice be obliged to enforce court decisions, but only that it does not have the right to challenge and reverse the essential reasons of
such decisions.
b) As regards the specific rules of extradition, these could not, of course, be contrary to a rule having constitutional value, and on the contrary they comply with such rule. The decision of the government with respect to It "passive" extradition is not made independently of procedural constraints. is, by the will of the legislator having issued the statute of 10th March 1927. only the outcome of a judicial process of control both "a priori" and "a
posteriori".
All the existing rules confirm this analysis. Firstly, the "Chambre d'accusation", which is a normal court of justice ("juridiction de droit commun"), must be consulted. The subsequent procedure leaves no doubt that the control which is exercised by it has a judicial nature. Firstly, the rule whereby both parties must attend ("principe du contradictoire") must be complied with. The court seats in its habitual composition with several magistrates and its decision is subject to recourse before the "Cour de cassation" since a decision of 18th May 1984 of the Criminal Chamber of the "Cour de cassation”.
-
With so clear convergent elements, the fact that the favourable advice
the does not oblige the French government to proceed effectively with extradition so authorised does not influence the nature of the decision, which results from following a judicial process. This, which is only a dissociation of impertum and jurisdictio a dissociation other examples of which can be found in French law - only means two things: compliance with the rule which prevents the judge (except in case of "voie de fait") to deliver injunctions against the administration, and a relative freedom of the government to refuse
to extradite for one of the four reasons mentioned above. Very large initially. such freedom is today restricted, firstly by the judicial reasons not being subject to criticism, then by the obligation to give reasons that the French
- 7 -
7-