TNAG-2653-FCO40-3846-Extradition-cases-from-the-UK-and-France-to-Hong-Kong-Lorrai-1992 — Page 151

CLIFFORD CHANCE

高偉紳律師行

3.

Summary of Advice Received as to the Possibilities of Proceeding further with DRS' Extradition

The MOJ says that its decision to proceed no further cannot be challenged and that the extradition is at an end. This is not accepted by our Paris office and those whom they have consulted. In essence, they say as follows :-

a)

(b)

(*)

(d)

(e)

(1)

(9)

(h)

the MOJ's decision to depart from the French Court's recommendations that DRS be extradited is highly unusual;

there is no previous instance of a requesting state challenging the MOJ's refusal to proceed with an extradition;

they believe that, in principle, the MOJ's decision is reviewable in the Conseil D'Etat because the MOJ gave reasons for its decision;

a challenge would need to be fully investigated but, on first sight, would not appear to be totally without merit because the MOJ's reasons for its decision are legal findings which are contrary to the findings of the French courts;

proceedings to challenge the MOJ's decision in the Conseil D'Etat may take as long as 3-4 years;

if the MOJ's decision were overturned in the courts, this would still leave the MOJ free to make a new decision not to extradite DRS upon grounds which could be justified in the French courts;

an alternative to, or interim measure prior to, proceedings in the Conseil D'Etat, would be a procedure known as a "Gracious Request" whereby the French Government would be asked to re-consider their decision the French Government

-

are likely to regard a Gracious Request as less confrontational and it could be more productive because it may open the door for diplomatic discussions and the presentation of a compromise solution whereby the MOJ would feel able to decide to proceed with the extradition;

to be of any effect, a "Gracious Request" would need to

(i)

(i)

be a comprehensive document re-stating Hong Kong's case; and,

(11) be fully supported by diplomatic approaches to the

French Government;

a "Gracious Request" would not preclude a subsequent challenge to the MOJ's decision in the Conseil D'Etat and