5.
We
considered that the case should not go beyond internal examination by its services, in which case the decision of refusal was taken at the level of the Minister of Justice. The decision of refusal was notified by the Ministry of Foreign Affairs. Lastly, the Prime Minister is the hierarchical superior of the other ministers. agreed that for practical purposes, a gracious request, if presented, should be presented at least both to the President of the Republic and the Minister of Justice and preferably also to the Minister of Foreign Affairs.
Mme Masse and Professor Cohen emphasised again that in their experience, all extradition matters are treated as diplomatic matters and contacts, if any, between the foreign authorities and the French authorities are made through the diplomatic channels i.s. embassies and the Ministry of Foreign Affairs in Paris.
Assuming the question of the capacity of the Colony of Hong Kong to take action (gracious or contentious) against the French authorities solved, the following problems were listed the solution of which would be a prerequisite to lodging a contentious recourse:
whether in general the Requesting State has the capacity to challenge a decision rejecting extradition whilst it never appears as a party to the administrative or judicial proceedings in France;
the status and the nature of the decision refusing the extradition: essentially whether it participates in the exercise of governmental authority in such a manner as it could be regarded, at least vis a vis the Requesting State in case of a refusal to extradite, as an Act of Government not subject to control on the part of the administrative courts;
the extent of the control of the administrative courts and the reasons which could be raised against the decision of the French Government:
whether the control of the administrative judge would be normal control (including a control of the judge on the appropriateness ("opportunite") of the decision) or whether the control should be minimal (excluding any control of appropriateness and limited to mistakes as to the facts, the law, action taken ultra vires or "manifest error").
to what extent the Government could make findings opposite to that of the Chambre d'Accusation. A discussion followed in this latter respect and Professor Cohen emphasised that the reasons given on 20th March by the Ministry of Foreign Affairs contain an implicit contradiction. On three accounts, the French authorities take the view that the reported offenses had already been the subject of review by the Chambre d'Accusation in 1987 and could not, therefore, justify extradition because of res judicata. But this emphasis placed on res judicata should normally have led the Government to fellow strictly the advice given by the Chambre d'Accusation in 1991 (bearing in mind, however, that the decision of the Chambre d'Accusation is not judgment and is merely an advice to the authorities). He