WINDHOEK – The Frenchman who is wanted in India on alleged sexual crimes committed against children appealed the extradition order that was issued by Magistrate Cosmos Endjala in September this year.
Mathieu Nocolas Furic, who is represented by Sisa Namandje, claims in papers filed with the High Court that he was not properly identified as the “subject” of the extradition request.
Furic was arrested on June 20 this year in Walvis Bay on a red notice from Interpol. It is alleged that he engaged in sexual acts with a group of children in the beach town of Puri in Odisha State in India.
According to Namandje, Furic went through what could be described as “a fundamentally flawed attempt at an extradition process”.
He said that the process followed in the arrest and subsequent arraignment of his client was irregular and unlawful to say the least.
“He was rather strangely and rather apparently arrested in terms of Section 40(1) (k) of the Criminal Procedure Act before the formal request by India and without compliance with the provisional arrest procedures as set out under Section 11 of the Extradition Act,” Namandje argued.
Section 40 makes provision for the arrest of any person against whom a reasonable suspicion exists that he committed an offence outside Namibia which, if committed in Namibia, would have been punishable by law and for which he is liable to be arrested.
Section 11 states that the minister of justice must apply to a magistrate for an arrest warrant for a foreigner wanted for extradition.
According to Namandje, the procedures followed did not comply with the provisions of the above Acts.
He further said that the failure of the State to comply with the Acts was compounded by the fact that the purported provisional arrest request by India is not only dated 21 June, after the arrest, but was done in terms of an extradition treaty between India and France, which makes it totally irrelevant.
According to Namandje, the magistrate committed material irregularities when he ordered the continuous detention of Furic pending his extradition to India.
These included the finding that the alleged offences relate to extraditable offences, and that the appellant was positively identified as the person who committed the alleged offences.
He contended that the magistrate erred when he found that the evidence, subject to questions of admissibility, adduced was sufficient to justify the committal for trial of Furic.
He also questioned the magistrate’s finding that the extradition request was requested in accordance with the Acts governing such.
According to Namandje the children’s statements could not be relied upon by the magistrate as they were not canvassed on their ability to give evidence.
Another bone of contention for Namandje was the fact that the particulars and documents in support of the extradition of Furic were not accompanied by the “full particulars of the person” that is requested in terms of the Extradition Act and he argued that the State failed to prove that Furic was the person to be extradited.
The translated documents accompanying the request were not accompanied by a sworn translation, which means they were not “authenticated” in terms of the Extradition Act, Namandje argued.
He submitted that there was a “demonstrable non-compliance with several peremptory and yet material provisions of the Extradition Act to the extent that it cannot be said that the magistrate was entitled to make a finding that the appellant’s request to return to India was done in accordance with the Act”.
In the result it was demonstrated that the magistrate should not have received certain documents into evidence and that his findings were wrong, Namandje said and asked the court to uphold the appeal and discharge Furic.
Judge Christi Liebenberg who heard the appeal with Judge Naomi Shivute reserved judgment, but indicated that he would endeavour to deliver judgment on November 27.
Simba Nduna appeared on behalf of the State.
By Roland Routh