03 July 1996
Translated by:
Professor Bernard Rudden
Professor B. S. Markesinis

Conseil d’Etat

Application of Mr. Moussa Kone asking the Conseil d’Etat to annul the Decree of 17 March 1995 granting his extradition to the Mali authorities;

Having seen the Constitution; the France-Mali Justice Cooperation Agreement of 9 March 1962; the Foreigners Extradition Act of 10 March 1927; Order no. 45-1709 of 31 July 1945; Decree no. 53-934 of 30 September 1953; and Act no. 87-1127 of 31 December 1987;

Considering that the challenged Decree grants the extradition of Mr. Kone, requested of France by the Mali authorities in enforcement of an arrest warrant issued on 22 March 1994 by the President of the Examination Division of the Mali Supreme Court in the context of his prosecution for acts of ‘complicity in misuse of public funds and illegal enrichment’ arising from funds transferred from Mali, being the proceeds of dealings in hydrocarbons carried out with the aid of false customs documents by Madame Mariam Cissoko and her brother Mr. Cissoko;

Considering that the mistake in the challenged Decree as to the married name of Madame Cissoko, which is not of such a nature as to cast any doubt on the true identity of the person concerned, mentioned in both the extradition request and in the opinion of the Arraignment Division of the Paris Court of Appeal, has no effect on the lawfulness of the said Decree;

Considering that article 48 of the France-Mali Justice Cooperation Agreement of 9 March 1962, recited above, provides that: ‘The extradition request shall be made through diplomatic channels . . . the matters of fact for which extradition is requested . . . the legal classification and references to all relevant provisions shall be given as precisely as possible. Further there shall be annexed a copy of the applicable legal provisions’;

Considering that the extradition request made by Mali to France on 27 March 1994 complies with these requirements; it spells out that the acts alleged to have been carried out by Mr. Kone amount to the offense of ‘complicity in misuse of public funds and illegal enrichment’ provided for and sanctioned by a term of imprisonment of from three to five years by the Mali Act no.82-93/AN-RM of 26 March 1982, and Ordinance no. 6/CMLN of 13 February 1974, a copy of which is in the record; that the mistake as to the date of the said Ordinance on one of the copies is not such as to render the challenged Decree unlawful;

Considering that is does not emerge from the documents in the record that the applicant would be subject to capital punishment in respect of the acts of which he is accused;

Considering that article 44 of the France-Mali cooperation agreement recited above provides as follows: ‘Extradition shall not be granted if the offense for which it is requested is considered by the party whose extradition is sought to be a political offense or one connected thereto’; that these provisions must be interpreted in accordance with a fundamental principle recognized by the statutes of the Republic, whereby the State must refuse the extradition of a foreigner where it is sought for political ends; that the provisions do not therefore seek to limit the power of the French State to refuse extradition to the sole case of political offenses and offenses connected thereto; that therefore, contrary to what is maintained by the Keeper of the Seals, Mr Kone is entitled to rely on this principle; that however it does not emerge from the documents in the record that the extradition of the applicant has been requested for political ends;

Considering that it follows from the foregoing that Mr. Kone is not entitled to require the annulment of the challenged Decree . . . (Application rejected).

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