TNAG-2653-FCO40-3846-Extradition-cases-from-the-UK-and-France-to-Hong-Kong-Lorrai-1992 — Page 96

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rights of the defence shall artificially increase the likelihood that they escape punishment. None of these two solutions is satisfactory.

2. In addition, the decision which shall be rendered by the court of trial shall not be contradictory ("contradictoire") vis-à-vis Mr. Saniman. This means that such decision shall not have the enforceability without which enforcement is impossible whether against the persons or, above all, on the

assets.

As Mr. Saniman can not be judged in France. the confirmation of the refusal to extradite him leads necessarily to guaranteeing him complete impunity. This is the source of a double concern. Firstly, this deprives the prejudiced party of any hope of compensation of its important prejudice, whilst the person responsible will benefit from the misappropriated funds. Secondly, this induces the public (especially foreign) to think that the State cannot repress corruption even acknowledged on its own soil and whatever be the scope

thereof.

This outcome would be very detrimental, especially as the reasons of the French government seems to be challengeable from a legal point of view.

II LEGAL ASPECTS

Whether it is examined in isolation (A) or whether it is compared to the final decision rendered on 30th October 1990 by the "Chambre d'accusation" of the Court of Appeal of Versailles (B). the decision of the French government is challengeable.

A. The refusal to extradite

Some decades ago, the position expressed by the French government in its note of 20th March may have been analysed as an act of government and,

therefore, not subject to judicial control.

Things are different today. The time when governmental decisions relating to extradition were not justified by reasons has since ended (1). This material change, which is verified in the present case, necessarily affects the judicial nature of the decision, which as a result ceases to escape the control of the administrative judge (2).