TNAG-2653-FCO40-3846-Extradition-cases-from-the-UK-and-France-to-Hong-Kong-Lorrai-1992 — Page 13

DE: CXX/007/MEG/JPB

•)

The rule, having constitutional value, of the separation of powers, is an obstacle to the executive power waking any pronouncement on a final decision of the judicial authority. The problem is not whether the French government can in practice be obliged to enforce court decisions, but only that it does not have the right to challange and reverse the essential reasons of such decisions.

b) As regards the specific rules of extradition, these could not, of course, be contrary to a rule having constitutional value, and on the contrary they comply with such rule. The decision of the government with respect to "passive" extradition is not made independently of procedural constraints. It is, by the will of the legislator having issued the statute of 10th March 1927. only the outcome of a judicial process of control both "a priori" and "a posteriori".

All the existing rules confirm this analysis. Firstly, the "Chambre d'accusation", which is a normal court of justice ("juridiction de droit commun"), must be consulted. The subsequent procedure leaves no doubt that the control which is exercised by it has a judicial nature. Firstly, the rule whereby both parties must attend ("principe du contradictoire") must be complied with. The court seats in its habitual composition with several nagistrates and its decision is subject to recourse before the "Cour de cassation" since a decision of 18th May 1984 of the Criminal Chamber of the "Cour de cassation".

With so clear convergent elements, the fact that the favourable advice does not oblige the French government to proceed effectively with the axtradition so authorised does not influence the nature of the decision, which results from following a judicial process. This, which is only a dissociation of imperium and jurisdictio a dissociation other examples of which can be found in French law • only means two things: compliance with the rule which prevents the judge (except in case of "voie de fait") to deliver injunctions against the administration, and a relative freedom of the governaent to refuse to extradita for one of the four reasons santioned above. Very large initially, such freedom is today restricted, firstly by the judicial reasons not being subject to critician, then by the obligation to give reasons that the French State imposes on itself, then by the control exercised by the administrative Judge.

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