Ex parte Deprez and Fontaine

• Jurisdiction: Mauricio
• Court: Supreme Court (Mauritius)
• Date: 29 January 1976

Mauritius, Supreme Court.

(Sir Maurice Latour-Adrien CJ and Garrioch SPJ)

Ex parte Deprez and Fontaine

Extradition Procedure and evidence Prima facie case Admissibility of evidence submitted by requesting State Reports submitted to juge d'instruction Whether admissible in evidence Succession in respect of extradition agreements

State succession Treaties Extradition treaty Extradition Treaty between France and the United Kingdom Application to Mauritius before independence Whether continuing in force after independence of Mauritius Whether formal acknowledgement of continued force by both States required The law of Mauritius

Summary: The facts:The applicants had been committed to prison by a magistrate pending their extradition to France. The only evidence produced before the magistrate had been reports submitted to a French juge d'instruction by a syndic in bankruptcy proceedings and by a police commissioner. The applicants applied for writs of habeas corpus under the Extradition (Foreign States) Act 1970 (the 1970 Act). They maintained that the charges against them were not adequately particularized, that there was no, or no sufficient, evidence admissible before the magistrate to warrant their committal and that it had not been proved that an extradition treaty existed between France and Mauritius.

Prior to the independence of Mauritius in 1968, the United Kingdom Extradition Acts 1870 to 1935 had applied in Mauritius, the Acts being applied in respect of each foreign State by means of an Order in Council. The United Kingdom Acts and Orders in Council were maintained in force by Section 5 of the Mauritius Independence Order 1968. The 1970 Act repealed the United Kingdom Acts in so far as they applied to Mauritius and replaced them with its own extradition provisions. However, Sections 3 and 41 of the 1970 Act provided that the Act applied to any State in respect of which an Order in Council had been made under the earlier legislation. Such an Order had been made in respect of France in 1878. The second applicant argued that for the Extradition Treaty between the United Kingdom and France to be continued in force between France and Mauritius an express recognition of its continued effect by both States was required.

Held:The applications were granted.

(1) No proof of a formal acknowledgment of the continued effect of the Treaty between Mauritius and France was required. It was sufficient that an Order in Council applying the Extradition Acts to France had been in force

immediately prior to independence and had been continued in force by the Independence Order and the 1970 Act (pp. 31416)

(2) The warrants clearly set out the offences with which the applicants were charged and the reports attached to those warrants supplied all the necessary information regarding the charges against the applicants (pp. 31617).

(3) The reports of the syndic and the police commissioner were not admissible in evidence. There was, therefore, no evidence on which the magistrate could have concluded that there was a prima facie case against the applicants (pp. 31920).

The following is the text of the judgment of the Court, delivered by Garrioch SPJ:

These are two consolidated applications for writs of habeas corpus moved for under section 12 of the Extradition (Foreign States) Act, 1970, (in this judgment referred to as the Act).

The first applicant is a Belgian national and the second applicant a French national. They were arrested and brought before the District Magistrate of Port Louis under a warrant issued by the Magistrate upon the receipt of a notice from the Attorney-General, sent under section 9 of the Act and stating that a request had been made to him for the surrender of the applicants who were accused of various criminal offences alleged to have been committed in Clermont-Ferrand, France, namely, swindling, fraudulent conversion of company property, fraudulent bankruptcy, embezzlement of company property, knowingly receiving property so embezzled, forgery and swindling.

At the hearing before the Magistrate, counsel appearing on behalf of the Attorney-General moved to produce, among other things, warrants purporting to have been issued by the Tribunal de Grande Instance de Clermont-Ferrand authorizing the arrest of the applicants, with, annexed to each warrant, a document described as ANNEXE I aux Mandats d'Arrts en date du 11 juillet 1974, dcerns contre DEPREZ Andr FONTAINE Catherine. The document is intituled Expos des faits and reads

En raison de la complexit de ceux-ci un bref expos des faits n'est pas possible. L'essentiel s'en trouve dans deux rapports, dont la copie se trouve dans la chemise:

* Rapport de Matre HOELTGEN, Syndic charg de la liquidation des socits STARLUX, TICAU, SODITEMA et autres, en date du 3 juillet 1974 (voir notamment les pages 7, 8 et 9);

* Rapport d'excution partielle d'une Commission Rogatoire rdig par les Services de la Police Judiciaire, en date du 6 juin 1974;

Pour l'essentiel, la consquence des agissements d'Andr DEPREZ et de sa concubine, Catherine FONTAINE, s'est rvle, aprs leur fuite, tre la suivante: environ 10.000.000 francs de trou, fermeture de l'entreprise et perte d'emploi pour prs de 200 personnes.

The first report mentioned in the Expos des faits is declared by its author to be submitted to the Juge-Commissaire la liquidation des biens des Socits Starlux, Ticau, Soditema et autres in conformity with the provisions of article 30 of the dcret of the 22nd December, 1967, and purports to describe the apparent state of affairs of those societies and to explain its causes and nature. It ends with the writer's observations concerning offences that would have been committed by Andr Deprez against the bankruptcy law of 1967.

The second report is addressed by the Commissioner of Police Antoine Rossion to Monsieur le Commissaire Divisionnaire du Service Rgional de Police JudiciaireClermont-Ferrand, and its object is set out in the introductory paragraphs which read

En vous transmettant conformment aux instructions de Monsieur le Juge mandant les 50 premiers P.V. de la prsente procdure, j'ai l'honneur de vous rendre compte, succinctement, de l'tat actuel de l'enqute que je diligente avec la collaboration des Inspecteurs FABRE et MARQUIS, du Service et la participation de l'Inspecteur Divisionnaire BERNARAS et de l'Inspecteur Principal GOBERT, ainsi que de nombreux autres collgues du Service.

Cette enqute concerne deux commissions rogatoires, en date des 1 et 2 avril 1974, de M. LOGELIN, Juge destruction CLERMONT-FERRAND, contre toutes personnes que l'information permettra de dcouvrir, et susceptibles d'tre inculpes d'escroqueries, infractions aux lois sur les Socits (spcialement abus de biens sociaux) et mission de chques sans provisions.

Mr. Rossion's report then proceeds with a summary of the facts having motivated the enquiry entrusted to him and of the investigation itself, which, in his view, had so far revealed that Andr DEPREZ would have, in some cases aided and abetted by Catherine FONTAINE, committed the offence in question.

The procs-verbaux referred to in the report have not been forwarded.

The production of those documents was, in the...