RESTRICTED
75
001745
MDHIAN 3732
RESTRICTED
FM PARIS
TO DESKBY 1309OOZ FCO
TELNO 380
OF 130702Z MAY 92
INFO IMMEDIATE HONG KONG
73
FCO TELNO 226 : SANIMAN
?
ре pe for 13/5.
1. NO PRECISE VIEW YET FROM THE QUAI ABOUT THE ''RECOURS GRACIEUX' AND ITS APPLICABILITY TO THE SANIMAN CASE.
2. THE ''RECOURS IS DEFINED AS A REQUEST TO ANNUL OR MODIFY AN ADMINISTRATIVE ACT OR LEGAL DECISION. IT IS ADDRESSED DIRECT TO THE ADMINISTRATION. THE QUAI'S LEGAL DEPARTMENT (BUT THE SPECIALIST IN THIS AREA HAS BEEN AWAY) SAY THAT IT IS NORMALLY USED IN MORE CONCRETE MATTERS EG A BUILDER CHALLENGING A PREFET WHO HAS REFUSED A PERMIT DE CONSTRUIRE. THEY FIND THE ARGUMENT THAT IT COULD BE APPLIED TO THE 'ADMINISTRATIVE ACT'' OF THE MINISTRY OF JUSTICE IN INTERPRETING THE COURT'S RULING IN THE SANIMAN CASE PRIMA FACIE OBSCURE. (BUT OF COURSE THEY ARE PART OF THE ADMINISTRATION WHICH WOULD BE CHALLENGED).
3. HONG KONG'S LAWYERS, WITH WHOM OUR LEGAL ADVISER HAS BEEN IN TOUCH, SAY THEY ARE CONFIDENT, ON THE BASIS OF ADVICE FROM LAWYERS FROM THE CONSEIL D'ETAT, THAT THE ''RECOURS'' IS USABLE, BUT THAT THE ARGUMENTS WILL HAVE TO BE POLITICAL AND GENERALLY DESCRIPTIVE RATHER THAN LEGAL. THE CONSEIL D'ETAT HAVE ALSO ADVISED THAT IT IS NORMALLY BEST TO OFFER A COMPROMISE TO CLINCH A DEAL. IN THIS CASE HONG KONG LAWYERS APPARENTLY BELIEVE THAT AN OFFER FOR SANIMAN TO SERVE SENTENCE IN THE UK RATHER THAN HONG KONG WOULD CONSTITUTE SUCH A COMPROMISE.
4. THESE ARE NOT MATTERS ON WHICH THIS EMBASSY CAN PROPERLY ADVISE (OUR LEGAL ADVISER SAYS THAT THIS IS A SPECIALISED AREA IN WHICH HE IS UNQUALIFIED). WHAT DOES SEEM CLEAR IS THAT ACTION MUST BE TAKEN BY 20 MAY.
5. IF THE DEPARTMENT WISHES TO INSTRUCT US TO MAKE A HIGH LEVEL CALL, WE SHALL NEED A SUCCINCT PAPER TO HAND OVER, AND EQUALLY IMPORTANT, A GOOD SPEAKING NOTE. THIS WILL HAVE, WE GATHER, TO BE PHRASED AS A REQUEST OF HMG, NOT THE HONG KONG GOVERNMENT, WHOSE LEGAL STATUS IS CONSIDERED DOUBTFUL HERE, AND COPIED TO THE QUAI, THE MINISTRY OF JUSTICE, MATIGNON AND POSSIBLY THE ELYSEE.
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