TNAG-2653-FCO40-3846-Extradition-cases-from-the-UK-and-France-to-Hong-Kong-Lorrai-1992 — Page 154

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this type can be made on strictly political or human rights grounds, the Government could refuse again to extradite Mr. Saniman either without giving any reason or in giving political or human rights reasons which would not be challengeable.

The participants considered further that the recourse contemplated by the Hong Kong Government would be likely to be regarded by the French Government as an unacceptable pressure. A recourse would be likely to draw publicity at least in human rights and civil liberties circles. To permit a foreign government to challenge a decision not to extradite made by the French Government would be seen by civil liberties and human rights associations as a clear departure from the traditional policy of France in the field of right of asylum and the protection of individual liberties. The French Government would almost certainly be subject to material pressures from these circles, not to change its position.

Mme Masse also added that, because of the complexity of the case and the legal problems likely to be raised, the matter would certainly take several years in the Conseil d'Etat: there wold also be a temptation on the part of the French Government and possibly the Conseil d'Etat itself to slow the procedure so that the case be in a state to be decided only in 1995-1996 when the issue of the retrocession of Hong Kong to the People's Republic of China shall have become pressing.

The nature of the recourse was then discussed.

The time during which a recourse must be lodged against an administrative decision is two months from its notification. Although such two months period can be extended by an additional two months period with respect to foreign parties, the fact that the decision of the French Government was notified to the British Embassy in Paris led the participants to think that, in order not to complicate the matter further, any agreed action should be taken before 20th May. The discussion focused on whether a contentious recourse attacking the decision of refusal directly in the Conseil d'Etat should be preceded, or not, by a "gracious request" to the administrative authority having made the decision, to the effect that it reconsiders its position.

It

This possibility is open to any party which is affected by an administrative decision. It takes the form of a simple request to the administrative authority which has made the challenged decision. It must be made within two months from the decision. suspends the running of time: time starts running again, for two months, from the date when the gracious request is rejected (or deemed rejected if the administration remains silent for four months after the notification of the request). Mme Masse emphasised that the advantages of a gracious request would be twofold: firstly, it would be seen as less "offensive" than a direct contentious recourse and could open the way for negotiations with a view to finding an alternative to the extradition of Mr. Saniman to Hong Kong. Secondly, it would leave the Hong Kong Government and its lawyers more time to decide (in taking into account any progress that may be made with the French authorities in the mean time whether or not to pursue a contentious recourse and on which basis.