MRSVPIRMAJPBE3989.ONK007 ME GUPB
TRANSLATION FOR INFORMATIONS PURPOSES ONLY
Translation of the legal opinion of Madame Masse-Dessen to the British Ambassador in Paris.
Your Excellency.
[Saniman]
You have asked me to indicate whether the referral of the matter to the Conseil d'Etat prevents the Minister of Justice from making a decision to reverse his refusal to extradite and to decide to extradite [Mr Rais Bin Saniman].
The answer to this question is, in my opinion, clearly in the negative.
1.
The refusal to extradite is, indeed, an individual administrative decision. Any administrative decision can be withdrawn. If it creates rights for an individual (the most favourable hypothesis for Mr Saniman), it also can be withdrawn, on the ground that it is illegal and on condition that it be not final (CE 3 November 1992 Dame Cachet. Rec. p. 790).
For the decision not to be final, the following conditions must be met:
either one must still be within the time period within which a recourse [in the Administrative Courts or in the Conseil d'Etat] can be made,
or a recourse [in the Administrative Courts or the Conseil d'Etat] must have been effectively made against the relevant decision.
The period of time during which a recourse can be made (normally two months) starts from the notification of the publication of the decision. Time started running in respect of Mr Saniman from the date on which the refusal to extradite him was notified to him (if ever was). Time started running for the requesting State from the date of the note verbale notifying the refusal to extradite. It started running vis a vis possible interested third parties only from the date of a notification or publication, if any.
From the date when a recourse is made, the decision is not final and can therefore be withdrawn. It is irrelevant in this respect that the person making the recourse have, or not. the required capacity therefor (CE Section 23 November 1962 Association of the Former Students of the Institut Commercial de Nanev p. 625. 1 February 1982 Angeletti p. 62).
Thus, without even discussing whether the recourse made before the Conseil d'Etat in this file was made by persons having the required capacity - and therefore without need that the question of the acceptability of the recourse made by the Government of the United Kingdom and the Governor of Hong Kong be resolved - the very existence of this recourse renders the decision to refuse to extradite Mr Saniman not final and as such capable of being withdrawn if it is illegal.