The refusal to extradite made
after the positive advice of the Chambre d'Accusation cannot, however, be regarded as detachable from the carrying-out of its international relations as being an act which is directly made between two governments and, in the case at stake, consists of the enforcement of an international treaty. It is therefore an act which is of the sovereign jurisdiction of the requested State, as results from the provisions of Article 18 of the statute of 10th March 1927.
The fact that the Franco-British treaty, in its Article 1, makes it an obligation for the contracting States to extradite if the conditions provided for in the treaty are met can only result in the political responsibility of the State which would refuse to comply with this obligation, in the absence of any international court having jurisdiction to make a legal decision on such a
breach.
To acknowledge the right of a national court to decide in these matters would be tantamount to allowing it to appraise acts resulting from the international relations between two States.
In order to have the administrative judge accept the detachable nature of the decision of refusal to extradite, the plaintiff states that this decision is not different, by its
its nature, from а decision of extradition, which can be challenged before the judge of the breach of the law.
The theory of acts of government, once applied to all extradition matters, has been limited only to the extent of the impact on certain decisions on individual freedom.
The decision to extradite produces effects in internal law which are very different from those of a refusal to extradite, and this justifies that only the former be detachable and challengeable.
Indeed, it concerns primarily an individual, and not a foreign State, and because of this, the nature of the decision taken is detachable from the carrying-out of the international relations and it differs from a decision of refusal which is made directly and only against a State. This detachable decision is then of such nature as to affect fundamental liberties guaranteed by the laws of the [French] Republic and the general principles of the law, which the Conseil d'Etat protects with particular care.
Conversely, the decision of refusal to extradite only affects the tangible and moral interests of a foreign State.
At no moment in the procedure of extradition does French law allow for the intervention of a foreign government. The latter can neither be a party to the procedure before the Chambre d'Accusation, nor make an appeal in the Cour de Cassation. For this reason, it is the Public Prosecutor who presents the foreign request before the judicial courts.
Thus, the decision of refusal to extradite, which does not raise problems of fundamental liberties, cannot be subject to revision by the Conseil d'Etat.
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