14-MAY-1992 10:35
ax regu de : 33 1 44 05 06 00
BRITISH EMBASSY PARIS
16 1 42 66 91 42
P.10
2.7/10
'92-05-14 00:03 CLIFFORD CHANCE PARIS 1 44055200
23
ON THE FACTS CALLED MISAPPROPRIATION OF ASSETS BY DECEPTION N° 21, 22 and
Considering that in French law, the fact for an agent, as Santman ts presently called, to have misappropriated the funds of his principal, by not using such funds for the purposes to which they were destined, i.e. in the present case by guaranteeing, in frauding B.M.F.L., personal loans, by using funds of B.M.F. L. on the monetary market, facts which are referred to and puntshed by articles 408 and 406 of the Criminal Code.
Considering that such facts correspond with respect to the principle of double punishment to the conditions of the Treaty and are provided for in article 3 thereof; considering that it is therefore appropriate to issue, as far as they are concerned, an advice in favour of extradition".
Approved on 12th March 1991 by the Criminal Chamber of the "Cour de
Cassation", such decision is today final.
1492
Its reasons are challenged in the afore-mentioned note of 20th March 1982 as follows:
"two of the remaining alleged offenses (n° 5 and 9) do not constitute offenses in French law and the three others (n° 21-22-23) have been the subject matter of a negative advice of the "Chambre d'accusation" of the Court of Appeal of Paris on 4th November 1987, which is final and which can not be challenged in the absence of new elements modifying the initial conditions of law”.
The position so taken is challengeable on two major
two major accounts: it challenges the assessment made by the judicial authority, and it appears to be spoilt by a manifest error ("erreur manifeste d'appréciation").
1.
The French government takes advantage of a former advice, of 4th November 1987, to set aside a more recent advice which, however, did not fail
to take into consideration the existence of this first decision.
In so doing, the government assumes an authority which the law does not vest into it, and which consists in fact in choosing discretionarily between two judicial decisions. Actually, it challenges, on two accounts, the final
decision rendered by the judicial authorities.
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