I
ON THE ENTERTAINABILITY OF THE RECOURSE
A.
ON THE ABSENCE OF NOTIFICATION TO THE PRIME MINISTER
The statute of 10th March 1927 provides that the Minister of Justice proposes, if necessary, to the signature of the President of the Republic a decree authorising the extradition. In compliance with the Constitution of 1958, the authority which was granted in these matters to the President of the Republic is now vested in the Prime Minister. The Minister of Justice formalises the decision of the Prime Minister which is notified by the Minister of Foreign Affairs.
As has already been stated, the decision of refusal is made, legally if not in fact, by application of the rule of parallelism of form, by the Prime Minister who is the only authority empowered to sign extradition decrees, the Minister of Justice being only a co-signatory. Thus, although the communication of the file to the Prime Minister is not mandatory, the decision to extradite or not to extradite is made by him.
The advocate of the United Kingdom states that if the determination of the authority having jurisdiction is difficult, it is for the authority to which the request is made, when it is connected to the authority having jurisdiction by a relation of collaboration, to transmit it to such latter authority in compliance with the decree of 28th November 1983 concerning the relations between the consumers and the administration.
It seems difficult to apply this text to the case at stake, unless one considers the United Kingdom as a consumer vis-à-vis the French administration. This decree is only aimed at protecting the consumer
of an administration and avoiding that errors in transmission be binding on them. It is not aimed at applying to the international relations between two States.
B.
ON THE JURISDICTION OF THE CONSEIL D'ETAT TO ENTERTAIN THIS RECOURSE
One must refer to the preceding observations. In the absence of any decree formalising the refusal to extradite, the Conseil d'Etat cannot have jurisdiction, none of its grounds of jurisdiction at first and final resort being applicable. Consequently, this recourse is of the jurisdiction of Administrative Tribunal [lower administrative court].
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Nevertheless, it is for the administrative courts [the Conseil d'Etat] compliance with the decree of 22nd February 1972, to transmit the request to the court which has jurisdiction, if it considers that it has been wrongly notified thereof.
C.
ON THE IMPOSSIBILITY TO ENTERTAIN A RECOURSE AGAINST THE DECISION OF THE FRENCH GOVERNMENT NOTIFYING TO A FOREIGN GOVERNMENT A REFUSAL TO EXTRADITE
The Conseil d'Etat, since the decision DECERF taken at full Assembly, accepts to control the legality of the extradition decrees taken by the Prime Minister, as it judges that these decisions do not constitute acts of government because they are detachable from the carrying-out of [the] international relations [of France].
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