But the decision of the Chambre d'Accusation of Versailles is wrong insofar as it considered that there were new elements permitting a new referral and giving raise to an advice different of that, negative, issued by the Chambre d'Accusation of Paris on 4th November 1987.
Finally, the fact that the Criminal Chamber of the Cour de Cassation, to which the question of the impossibility to overcome the negative advice had been referred, has decided on that issue, and considered it to be simply a matter of form, and dismissed it, is not conclusive. Indeed, the Cour de Cassation did not state in this matter that there was a new element, which would have been an examination of the merits of the case which it does not allow itself to carry out in compliance with Article 16 of the statute of 10th March 1927. It only stated that Article 17 of the statute of 10th March 1927 "does not prevent a new referral to the Chambre d'Accusation for the same facts against the same person, when the Government is itself notified of a new request based on elements which, having taken place or being disclosed since the preceding request, allow for a different appraisal of the legal conditions for the extradition".
2. Counts of indictment n° 5 and 9: Conspiracy to defraud
It is reproached to Mr Saniman to have, with others, granted two loans of USD 138 million and USB 100 million to the Georges Tan Group, and disregarded the banking rules then in force. Such loans were made available in eleven drawings between 29th September and 1st December 1981 for the first one and in eight drawings from 1st December 1981 to 4th February 1982 for the second one.
In order to mask the role of the Georges Tan Group, these advances were shown as term loans, granted to private companies all controlled by Georges Tan.
The Chambre d'Accusation of the Court of Appeal of Versailles analysed the offences submitted to it as constituting escroqueries in French law.
However, it does not appear, whether from the statement of facts transmitted in support of the request, nor even from the reasons given in the decision of the Chambre d'Accusation of the Court of Appeal of Versailles, that the fraudulent manoeuvres (creation of companies, forgery of documents) took place prior to the remittance and were the actual cause thereof. They seem, on the contrary, to have been realised in order to conceal the embezzlement of funds already paid.
Thus these facts would not seem to fall within any characterisation listed in the Franco-British Treaty of 14 August 1876.
The Government did not act ultra vires by not considering itself bound by the positive advice issued by the Court of Appeal of Versailles. A positive advice does not bind the Government, which must itself verify that all the conditions are met for the extradition. This examination bears, in particular, on the requirement of double incrimination in the absence of which one cannot contemplate taking a decision of extradition.
The fact that the Cour de Cassation did not decide on the issue is not operative as double incrimination is a question relating to the merits of the case and, therefore, on which the Cour de Cassation acknowledges that it does not have jurisdiction.
THE HEAD OF INTERNATIONAL AND EUROPEAN AFFAIRS
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André Potocki
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