33-APP-1993
16:36
==ITISH EMBASSY PAF :=
16 1 42 BE P1 J2
P.37
24
Finally, the escroquerie is an intentional offense and the intentional element cannot result from mere negligence or not taking precautiors (Cassation Criminelle, 14th January 1941 SIREY 1.142),
The fifth count of indictment as set out to obtain the extradition is worded as follows:
(TEXT OF THE FIFTH COUNT OF INDICTMENT IN FRENCH)
One looks in vain in this count of indictment for the description of the fraudulent manoeuvres having
caused the remittance of the funds.
The words "allowed and caused B.M.F.L. to grant advances" discloses no fraudulent manoeuvres.
To grant loans to non-existent or ron-registered companies without appropriate security is certainly a fault, but it does not fall within the scope of the offence of escroquerie.
The recourse avails itself of paragraphs 113 and 133 and 184 to 211 of the statement of facts pp. 26 to 34 and 44 to 49 of the French document to which one will thereafter refer for convenience.
There is one obvious observation, that is that the commentaries in which the recourse refers cannot modify the legal characterisation as set out in the fifth count of indictment and the requested State cannot modify it either. In these conditions, all the commentaries made in respect of the facts can change nothing to the fact that this count of indictment does not include the elements which characterise escroquerte.
A second observation must be made which is also valid in respect of the ninth count of indictment: all
the procedure is vitiated by an inherent contradiction.
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