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You are here: BAILII >> Databases >> European Court of Human Rights >> IRIBARNE PÉREZ v. FRANCE - 16462/90 [1995] ECHR 43 (24 October 1995) URL: http://www.bailii.org/eu/cases/ECHR/1995/43.html Cite as: 22 EHRR 153, (1996) 22 EHRR 153, [1995] ECHR 43 |
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In the case of Iribarne Pérez v. France (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of Rules of Court A (2), as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr L.-E. Pettiti,
Mr R. Pekkanen,
Mr M.A. Lopes Rocha,
Mr G. Mifsud Bonnici,
Mr P. Jambrek,
Mr P. Kuris,
Mr U. Lohmus,
and also of Mr H. Petzold, Registrar,
Having deliberated in private on 25 May and 29 September 1995,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 34/1994/481/563. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) and thereafter only to cases
concerning States not bound by that Protocol (P9). They correspond to
the Rules that came into force on 1 January 1983, as amended several
times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission of
Human Rights ("the Commission") on 9 September 1994, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 16462/90) against the French Republic lodged with the
Commission under Article 25 (art. 25) by a Spanish national,
Mr Francisco Iribarne Pérez, on 18 March 1986.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby France recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 5 para. 4 (art. 5-4) of the Convention.
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that he wished
to take part in the proceedings and designated the lawyer who would
represent him (Rule 30). On 7 November 1994 the President of the Court
gave the lawyer leave to use the Spanish language during the
proceedings (Rule 27 para. 3). On 24 February 1995 the President
granted the applicant legal aid (Rule 4 of the addendum to Rules of
Court A).
3. The Chamber to be constituted included ex officio
Mr L.-E. Pettiti, the elected judge of French nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 24 September 1994, in the presence of
the Registrar, the President drew by lot the names of the other seven
members, namely Mr N. Valticos, Mr R. Pekkanen, Mr M.A. Lopes Rocha,
Mr G. Mifsud Bonnici, Mr P. Jambrek, Mr P. Kuris and Mr U. Lohmus
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
Subsequently Mr R. Bernhardt, substitute judge, replaced Mr Valticos,
who was unable to take part in the further consideration of the case
(Rule 22 paras. 1 and 2 and Rule 24 para. 1).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting
through the Registrar, consulted the Agent of the French Government
("the Government"), the applicant's lawyer and the Delegate of the
Commission on the organisation of the proceedings (Rules 37 para. 1 and
38). The applicant's memorial and his claim for costs and expenses
were received by the registry on 25 and 30 January 1995 respectively,
and the Government's memorial on 1 February. On 13 March 1995 the
Commission supplied the Registrar with various documents that he had
requested on the President's instructions. On 22 March 1995 the
Secretary to the Commission informed the registry that the Delegate did
not intend to submit any written observations.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
22 May 1995. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Ms M. Picard, magistrat, on secondment to
the Legal Affairs Department,
Ministry of Foreign Affairs, Agent,
Mr G. Bitti, Special Adviser,
European and International Affairs Department,
Ministry of Justice, Counsel;
(b) for the Commission
Mr H. Danelius, Delegate;
(c) for the applicant
Mr J.J. Rico Iribarne, abogado, Counsel.
The Court heard addresses by Mr Danelius, Mr Rico Iribarne and
Ms Picard.
AS TO THE FACTS
I. Circumstances of the case
6. Mr Francisco Iribarne Pérez, a Spanish national, lived in Andorra
between 1981 and 1985. He now lives in Spain.
A. The proceedings in Andorra
7. On 7 July 1985 the Andorran police arrested the applicant
following the discovery of a quantity of drugs and a firearm, among
other things, during a search of his home; he was held in police
custody for four days. Two other persons were arrested in connection
with the same proceedings.
The applicant and the other two suspects were prosecuted on
charges of importing prohibited drugs into Andorra, drug trafficking
and unlawful possession of a firearm.
8. During the trial Mr Iribarne Pérez claimed that his confessions
and those of the other two defendants had been made under duress. He
apparently also pleaded that his participation in the alleged offences
had been intended to secure the arrest of drug traffickers wanted by
the Spanish guardia civil.
9. On 26 November 1985 the Tribunal de Corts gave judgment as
follows:
"...
[The Tribunal de Corts] sentences Francesc Iribarne Pérez, who
has been found guilty of importing, possessing and dealing in
toxic substances and prohibited drugs and of unlawful possession
of a firearm, to twelve years' imprisonment; ... orders that all
the accused be deported from the Principality and that they pay
costs; the time already spent in custody in connection with these
proceedings by those convicted shall be deducted from the
principal sentence.
This judgment is final."
The judgment was served on Mr Iribarne Pérez on 2 December 1985
in the presence of his lawyer.
10. In its report the Commission noted in addition that after two
further trials the Tribunal de Corts sentenced the applicant to one
year's imprisonment for bribing a civil servant and to six months'
imprisonment for attempting to escape, and that Mr Iribarne Pérez
claimed that these judgments - whose date has not been determined -
were never served on him.
B. The proceedings in France
11. Mr Iribarne Pérez chose to serve his sentence in France and was
taken to Toulouse prison on 17 December 1985.
On 16 March 1986 he attempted to escape and on 17 June 1987 was
sentenced on that account to ten months' imprisonment by the Toulouse
Criminal Court.
He served part of his sentence at Fresnes prison between
11 April 1986 and 12 January 1987 and was then moved to Muret prison.
12. On 28 January 1990 the applicant lodged a memorial with the
Toulouse public prosecutor, complaining of the proceedings conducted
against him in Andorra and of his detention in France.
In a letter to the governor of Muret prison dated 6 March 1990
and communicated to the applicant on 12 March, the public prosecutor
replied as follows:
"Please inform Francisco Iribarne Pérez, prisoner number 4724,
that he should address his petition to the President of the
Tribunal de Corts, which has sole jurisdiction, as the judgment
which imposed the sentence he is serving was delivered by that
court.
Please inform him that no further action is to be taken in
connection with his application of 28 January 1990."
13. On 14 January 1993 Mr Iribarne Pérez lodged a criminal complaint
with the Court of Cassation against the Toulouse public prosecutor,
alleging arbitrary detention and denial of justice. He also lodged an
application to join the proceedings as a civil party. He claimed that
the public prosecutor had not complied in his case with the
requirements of Articles 713-1 et seq. of the Code of Criminal
Procedure concerning the transfer to France of persons convicted abroad
and had not even informed him of the existence of those provisions.
14. On 30 March 1993 the Minister of Justice wrote to the principal
public prosecutor at the Toulouse Court of Appeal as follows:
"On 9 March 1993 you forwarded to me a letter from
Mr Francisco Iribarne Pérez complaining of the proceedings as a
result of which he came to serve his sentence in France.
I have the honour to inform you of the following.
Francisco Iribarne Pérez chose to serve his sentence in a French
prison, as he was entitled to do under Article 210 of the
Andorran Decree on Criminal Procedure of 10 April 1976. No right
to retract such a choice is conferred by that provision.
A transfer carried out under the above-mentioned Convention of
21 March 1983 means a transfer from a `sentencing State' to an
`administering State'.
With regard to the circumstances of the complainant's detention,
France is indeed the State administering enforcement of the
sentence imposed on him in Andorra, and there is no provision in
the Convention for transfer from one administering State to
another.
I would add that, in any event, Andorra cannot even be regarded
as the sentencing State, since in law it is not recognised as a
State.
It should be noted that the arrangement between France and
Andorra in the matter of the execution of prison sentences is not
the only one of its kind; it is similar to the situation under
the Convention on neighbourly relations between France and the
Principality of Monaco of 18 May 1963.
With regard to application of Articles 713-1 et seq. of the Code
of Criminal Procedure, concerning the transfer to France of
persons sentenced and imprisoned abroad, those provisions are not
applicable in this case, as Andorra is not considered a subject
of international law and its courts are therefore not foreign
courts within the meaning of Article 713-1."
15. The applicant was released on 13 August 1994 and then expelled
from French territory.
II. Relevant French law
16. The transfer to France of a person convicted abroad is governed
by the following provisions of the Code of Criminal Procedure (Law
no. 84-1150 of 21 December 1984):
Article 713-1
"Where, by virtue of an international convention or agreement,
a person detained in execution of a sentence passed by a foreign
court is transferred to French territory in order to serve the
remaining portion of his sentence there, the sentence shall be
enforced in accordance with the provisions of this Code, and in
particular Articles 713-2 to 713-6."
Article 713-2
"Immediately after his arrival in French territory the convicted
prisoner shall be brought before the public prosecutor of the
place of arrival, who shall question him as to his identity and
draw up a record of the interview. Where, however, it is not
possible to question him immediately, the convicted person shall
be taken to the local prison, where he may not be detained for
more than twenty-four hours. On expiry of that limit the chief
warder shall, without more, ensure that he is brought before the
public prosecutor [since the entry into force of Law no. 87-432
of 22 June 1987 the words "chief warder" have been replaced by
"prison governor"].
Having inspected the documents recording the States' agreement
to the transfer and the prisoner's consent, together with an
original or execution copy of the foreign judgment containing his
conviction, accompanied, where necessary, by an official
translation, the public prosecutor shall apply for the convicted
person's immediate imprisonment."
Article 713-3
"The portion of the sentence imposed abroad remaining to be
served in the foreign State shall, by virtue of the international
convention or agreement, be directly and immediately enforceable
in French territory.
However, where the sentence imposed is more severe, in nature or
length, than the penalty provided for in French law for the same
offence, the criminal court of the place of detention shall, on
an application by either the public prosecutor or the person
convicted, substitute for it the sentence which is most similar
in French law, or reduce it to the maximum the law allows.
Consequently, the court shall determine, in the individual case,
the nature of the sentence to be enforced and its length, which
may not exceed the portion which remained to be served in the
foreign State."
Article 713-4
"The court shall give its decision in public, after hearing the
public prosecutor, the person convicted and, where appropriate,
the lawyer chosen by him or officially assigned at his request
under the legal-aid scheme. This decision shall be enforceable
immediately, any appeal notwithstanding."
Article 713-5
"The time taken for the transfer shall be deducted in full from
the sentence enforced in France."
Article 713-6
"All appeals and applications relating to enforcement of the
prison sentence remaining to be served in France shall be
submitted to the criminal court of the place of detention.
The provisions of Article 711 of this Code shall apply."
Article 713-7
"Execution of sentence shall be governed by the provisions of
this Code."
Article 713-8
"No criminal proceedings may be brought or continued and no
sentence may be enforced in respect of the same offence against
a convicted person who, under the terms of an international
convention or agreement, is serving in France a prison sentence
imposed by a foreign court."
III. The Andorran judicial system
17. The Constitution of the Principality of Andorra, in force since
4 May 1993, and the Administration of Justice Act, of 3 September 1993,
radically altered the Andorran judicial system.
A. Before the 1993 reform
18. In the Drozd and Janousek v. France and Spain judgment of
26 June 1992 (Series A no. 240, pp. 17-21, paras. 46-66) the Court
described the Andorran legal system before 1993 as follows:
"46. With the exception of the Court of Visura, which settles
disputes between neighbours and is responsible to the General
Council, the courts of Andorra have their legal basis in the
Co-Princes' historic `right of justice' and are thus directly
responsible to the Co-Princes.
The members of the lower courts are always of Andorran
nationality, while those of higher courts are often of foreign
origin, because of the smallness of the Principality and out of
concern for preserving the independence of the judiciary.
47. As a general rule, judges are appointed by the Co-Princes.
The French Co-Prince traditionally selects French judges, either
honorary judges or serving judges seconded by the Ministry of
Justice, chosen with regard to personal competence, knowledge of
Andorran law, knowledge of Catalan and understanding of Spanish.
The episcopal Co-Prince bases his choice on the criteria of
competence, independence, lack of personal interests in Andorra
and availability for service, judicial office in Spain being
incompatible with the position of judge in Andorra, even on a
part-time basis and for a fixed term.
1. Criminal justice
48. A decree of the veguers [(direct representatives in Andorra
of the two Co-Princes, the President of the French Republic and
the Bishop of Urgel)] of 30 December 1975 laid the foundations
of a new criminal justice system, providing in particular for the
intervention of counsel and the establishment of a public
prosecutor's office. A decree on criminal procedure followed on
10 April 1976. A Code of Criminal Procedure, based on the
veguers' decrees and on customary law, was introduced in 1984 and
amended on 16 February 1989.
(a) The institutions
(i) The batlles
49. The batlles are first-instance judges with criminal and
civil jurisdiction, and also have other duties. They carry out
investigations into crimes which have been committed, supervise
the enforcement of court judgments pronounced in Andorra, and sit
on the Tribunal de Corts as non-voting assessors (see
paragraph 52 below).
Since the veguers' decree of 6 August 1977 they are four in
number. The French veguer and the episcopal Co-Prince each
appoint two of them, chosen from a list of seven names drawn up
by the General Council of the Valleys. The persons appointed
must have Andorran nationality.
(ii) The Court of Minor Offences
50. The Court of Minor Offences was established by the
Co-Princes in 1988. It has first-instance jurisdiction over
minor criminal cases and appeals against its judgments can be
brought before the Tribunal de Corts.
(iii) The Tribunal de Corts
51. The Tribunal de Corts was until 15 October 1990 the supreme
criminal court. It `judges ... all cases relating to offences
committed on the territory of the Valleys, without difference or
distinction of persons, and offences committed by Andorrans
abroad' (Article 2 of the Andorran Code of Criminal Procedure).
It also rules on appeals brought against judgments of the
batlles.
52. The court is composed of three members, the Judge of
Appeals and the two veguers.
The Judge of Appeals presides over the court, directs the
proceedings and acts as the reporting judge who drafts the
judgment. He decides alone on appeals concerning detention on
remand. He is a French or Spanish judge appointed for five years
by each Co-Prince alternately; he must have a knowledge of the
law of the Principality and its official language, Catalan.
The veguers ... are entitled to sit but generally do not do so.
The French veguer - a diplomat appointed by the French Co-Prince
for an indefinite period - has since 1981 been substituted by a
French judge, either honorary or seconded by the Ministry of
Justice. The episcopal veguer has not sat since 22 April 1988
and now delegates his duties to a Spanish judge ... The veguers
or their substitutes need not be Andorran, nor need they be
jurists, but they must speak Catalan. They are assisted by two
batlles, two notaries who act as clerks of court, an usher and
two rahonadors, who are delegated by the General Council of the
Valleys, of which they are members.
53. The public prosecutor's office is composed of a fiscal
general and an assistant fiscal general, who are appointed for
five years by whichever of the Co-Princes has not appointed the
Judge of Appeals.
(iv) The Tribunal Superior de Corts
54. By a decree of 12 July 1990, which had been in the course
of preparation since 1981, the veguers established a new court,
the Tribunal Superior de Corts, which consists of four judges
appointed for five years by the Co-Princes and decides on appeals
(recursos de suplicació) against judgments of the Tribunal de
Corts.
On the following day they issued a further decree dealing with
procedure, including the following transitional provisions:
'1. Convicted persons who before the coming into force of the
present decree have to serve or ... are in the course of serving
sentences of imprisonment as a result of judgments of the
Tribunal de Corts may bring an appeal (recurs de suplicació)
against such sentences to the Tribunal Superior within a period
of two months from the coming into force of the present decree.
2. The present decree shall come into force on 15 October 1990.'
(b) Enforcement of sentences
55. Article 234 of the Andorran Code of Criminal Procedure
provides for two distinct systems of enforcement for sentences
of imprisonment passed in Andorra: a convicted person serves his
sentence in an Andorran prison if the sentence is less than three
months, and in a French or Spanish prison in other cases.
(i) The choice of country of detention
56. In the latter case it is for the convicted person to choose
between France and Spain. The choice is definitive and implies
the tacit acceptance of the prison regime of the country chosen.
This practice originates in customary law as traditionally
applied since the twelfth century.
From 1979 to 1989, transfer to France was requested by 32
convicted persons and to Spain by 134. No prisoners from Andorra
were admitted to French prisons in 1990 and 1991.
(ii) The French system
57. If a convicted person chooses France, as in the present
case, enforcement of the sentence is governed by the provisions
of the French Code of Criminal Procedure (circular of the
Minister of Justice of 8 February 1983). Like any person
convicted in a foreign country and transferred to France, he is
entitled (according to the Government) to remission of sentence,
prison leave and semi-imprisonment in the same way and subject
to the same conditions as prisoners sentenced by a French court
(Article D.505 of the Code of Criminal Procedure).
58. The judge responsible for the enforcement of sentences has
sole jurisdiction to decide whether to grant the prisoner release
on licence or to remit part of his sentence, within the legal
limits.
If the term of imprisonment exceeds three years, it is for the
Minister of Justice to grant release on licence. The Minister
must first obtain the consent of the Tribunal de Corts
(Article 253 of the Andorran Code of Criminal Procedure).
59. Under Article 710 of the French Code of Criminal Procedure,
disputes relating to the enforcement of sentences are brought
before the court which pronounced the sentence, in this case the
Andorran court.
(iii) Pardons
60. An individual pardon can only be granted by the two
Co-Princes acting jointly.
61. Collective pardons do not apply to prisoners sentenced by
Andorran courts who serve their sentences in France, as they were
expressly excluded by a decree of the President of the French
Republic of 1985. The presidential decrees of 17 June 1988 and
13 June 1989 did authorise pardons to take effect if this was
allowed by international agreements ratified by France, but there
is no specific arrangement with Andorra on this point.
(iv) Amnesties
62. Only the Andorran authorities have jurisdiction to grant an
amnesty. In addition, the Tribunal de Corts can vary its own
decision by reducing the sentence and granting genuine release
on licence, which is referred to as `provisional release'.
2. Civil justice
63. There are three levels of jurisdiction in civil matters.
64. The batlles (see paragraph 49 above) have first-instance
jurisdiction, as in criminal cases.
65. The Judge of Appeals (see paragraph 52 above) hears appeals
against the decisions of the batlles.
66. The court of final jurisdiction is the Higher Court of
Andorra which consists of two `senates', the Higher Court of
Perpignan and the Higher Court of the Mitre.
The former consists of two ex officio members (the President of
the Perpignan tribunal de grande instance and the French veguer,
who has not sat for many years now) and two members appointed for
four years by the French Co-Prince (a lawyer from the Perpignan
bar and a person with knowledge of the language and customs of
Andorra). It does not apply French law or follow French
procedure; in particular, it is not subject to review by the
Court of Cassation.
The latter senate consists of a President, a Vice-President and
four judges (vocals), appointed by the episcopal Co-Prince.
The two senates have their seats at Perpignan and Urgel
respectively, but carry out their functions in Andorra."
19. Since 1992 only one prisoner from Andorra has been admitted to
a French prison.
B. Since the 1993 reform
20. In their joint report of 27 May 1994 on the legislation of the
Principality of Andorra prepared at the request of the Bureau of the
Parliamentary Assembly of the Council of Europe (Addendum III to
Document 7080) Mr Manuel Antonio Lopes Rocha, Judge of the European
Court of Human Rights, and Mr Jean-Claude Geus, member of the European
Commission of Human Rights, made the following observations:
"VII. Judicial institutions
1. The Constitution and the qualified law on justice have
radically reformed the Andorran judicial system. The system
described by the European Court of Human Rights in paragraphs 46
to 54 and 63 to 66 of its judgment in the case of Drozd and
Janousek of 26 June 1992 (Series A no. 240) is consequently a
thing of the past.
At present, the court of first instance is the Batllia or
Tribunal de Batlles and the Batlles themselves who have criminal,
civil and administrative jurisdiction. The Batlles sit as
one-person courts for petty criminal offences, for civil cases
involving minimal amounts and for administrative cases concerning
social security disputes. In other cases, the Tribunal de
Batlles meets with three members or in plenary.
The Tribunal de Corts acts as a first-instance court for major
offences and as an appeals court for petty and minor offences.
As for the Superior Court of Andorra, it has jurisdiction for all
appeals lodged against judicial decisions handed down by the
Batllia in civil and administrative cases, and by the Tribunal
de Corts in criminal cases.
All judges are appointed for a renewable six-year term by the
High Council of Justice. During their term of office they are
irremovable. The office of judge is incompatible with any public
office and with the exercise of any other professional activity.
Under Article 86, paragraph 3, of the Constitution, criminal
judgments are handed down by a judicial authority other than the
one in charge of the investigation.
The office of the public prosecutor forms a separate body
possessing a status like that of the judiciary. Its members
cannot receive instructions from the political authorities.
The High Council of Justice is composed of five members appointed
as follows: one by each Co-Prince, one by the Sindic General [who
presides over the Consell General, which is the legislative organ
and whose members are elected by universal suffrage], one by the
Head of Government and one by the judges. Their six-year term
is not renewable. The High Council appoints the judges, the
Attorney General and his deputies. It exercises disciplinary
power and, generally speaking, administers justice. There is
then no Minister of Justice in Andorra.
The High Council of Justice also has the task of guaranteeing the
independence of Andorran justice, which formerly was the
responsibility of the Co-Princes. The Co-Princes could not,
however, exert any influence over the judges on account of their
personality.
2. We have no criticisms to make about the organisation of the
judicial system, as briefly described. We consider that the
limited term of office of the judges is not such as to jeopardise
their independence. The composition of the High Council of
Justice and the difficulty of replacing judges, which leads to
the almost automatic renewal of terms of office, seem to offer
sufficient safeguards in this connection.
It should also be noted that the State assumes liability for
injury resulting from judicial error or miscarriage of justice.
VIII. The Constitutional Court
In the Constitution, the Constitutional Court is treated
separately from the judicial system. It is composed of four
judges of whom one is appointed by each Co-Prince and two by the
Consell General. Their term of office is eight years and is not
immediately renewable.
It is the competent organ for appeals against laws on the grounds
of unconstitutionality, requests for preliminary opinion as to
the conformity of laws and international treaties with the
Constitution, constitutional protection procedures (empara
appeals), and conflicts of jurisdiction between public
authorities. Interlocutory questions are also addressed to it
by the courts.
The remedy of empara has deliberately been restricted to acts by
the public authorities that impair fundamental rights so as to
guard against the Constitutional Court becoming bogged down with
appeals, which might have the effect of increasing the length of
proceedings. The Andorran Constituent Assembly thus drew lessons
from Spanish experience of the remedy of amparo."
IV. Andorra's international status
A. At the material time
21. In the Drozd and Janousek judgment the Court described Andorra's
international status as follows (pp. 21-23, paras. 67-74):
"67. The status in public international law of the Principality
of Andorra is striking by its originality and ambiguity, so much
so that it is often regarded as an entity sui generis.
The practice followed in recent years suggests that there is now
agreement between the Co-Princes to regard themselves as equals
in the conduct of Andorra's international relations. Andorra has
entered into a number of bilateral and multilateral relations in
this field.
A. Bilateral relations
1. Relations with France
68. Relations between Andorra and France do not fit into the
pattern of relations between sovereign States. They have never
taken the form of international agreements, as the French
Co-Prince is the President of the French Republic and the French
Government have always refused to recognise the Principality's
statehood. Such relations take a number of forms: unilateral
French acts, such as the establishment of French schools;
administrative arrangements, such as those dealing with social
security, telephone networks and customs regimes; de facto
relationships, sometimes deriving from custom (this is the case
with the enforcement of certain sentences outside Andorra - see
paragraphs 55-62 above), sometimes based on administrative or
judicial practice (decisions of the Andorran courts have the
status of res judicata in France and do not require an exequatur
for enforcement).
The French Government also place a unit of police (gendarmerie)
at the disposal of Andorra.
Finally, France does not have a consulate in the Principality.
French nationals in Andorra are dealt with by the prefecture of
the Pyrénées-Orientales department.
2. Relations with Spain
69. Relations between Andorra and Spain follow a similar
pattern. They feature unilateral Spanish acts, such as the Royal
Decree of 10 October 1922 regulating trade between the
Principality and the Kingdom of Spain, and bilateral arrangements
such as the agreements of an administrative type relating to
social security.
The Spanish Government also make certain facilities available to
the Mitre. Thus a unit of the guardia civil is stationed in
Andorra: the members of this unit are no longer responsible to
their original administrative department and the episcopal veguer
can effectively veto their appointment or presence in Andorra;
the Spanish authorities are responsible for their pay, while the
costs of equipment and operational expenditure in respect of
administrative and in particular consular functions are borne by
the Andorran budget.
There is no Spanish consulate in Andorra. The episcopal veguer
acts as de facto consul for Spanish citizens.
3. Relations with States other than France and Spain
70. Andorra does not maintain diplomatic relations with any
other State.
On the other hand, it has entered into consular relations with
the following eight countries: Argentina, Belgium, Germany,
Italy, Switzerland, the United Kingdom, the United States of
America and Venezuela. It does not have its own consular
representation, however, and its nationals are protected by the
French and Spanish authorities in this respect.
B. Multilateral relations
1. International organisations
71. Andorra is not a member of any intergovernmental
international organisation.
On 15-18 October 1990 the Committee of Ministers of the Council
of Europe `asked the Secretary General to contact the two
Co-Princes to define the areas suitable for co-operation between
the Council of Europe and the Principality of Andorra'. In so
doing it was giving an `interim response' to Recommendation 1127
(1990) on the Principality of Andorra, adopted by the
Consultative Assembly of the Council of Europe on 11 May 1990.
2. International agreements
72. Andorra has acceded to two international agreements, the
Universal Copyright Convention (Geneva, 1952) and the Convention
for the Protection of Cultural Property in the Event of Armed
Conflict (The Hague, 1954).
3. International conferences
73. Since the Universal Copyright Conference (Geneva, 1952)
Andorra has regularly taken part in meetings of UNESCO. It has
also sent delegations to three conferences: the conference on the
protection of cultural property in the event of armed conflict
(The Hague, 1954), the conference to revise the Universal
Copyright Convention (Paris, 1971), and the conference on the
protection of phonographic recordings (Geneva, 1971).
Since 1973, on the order of the Co-Princes, the Principality's
representatives at these conferences have been appointed by the
veguers jointly. Four members of the General Council of the
Valleys now accompany the said representatives; the Head of
Government is the spokesman of the delegation.
4. The European Communities
74. For some decades Andorra was not part of the Communities'
customs territory.
On 20 March 1989 the Council of the European Communities adopted
a directive inviting the (Brussels) Commission to negotiate an
agreement with Andorra with a view to creating a customs union
for industrial products.
The agreement in question came into being on 28 June 1990 in the
form of an exchange of letters, and entered into force on
1 January 1991. The Principality's letter was signed by the
representatives of the Co-Princes and by the Head of Government."
B. Subsequent developments
22. Since then Andorra's international status has undergone sweeping
changes. The Constitution of 4 May 1993 defines Andorra as "an
independent, democratic and social State based on the rule of law"
(Article 1 para. 1). The Principality became a member of the United
Nations Organisation on 28 July 1993 and of the International
Telecommunications Union on 12 November 1993. On 10 November 1994 it
joined the Council of Europe and signed the European Convention on
Human Rights.
A treaty on "neighbourly relations, friendship and co-operation
between the French Republic, the Kingdom of Spain and the Principality
of Andorra" was signed on 1 June 1993 by the French and Spanish
Ministers for Foreign Affairs and on 3 June by Andorra's Head of
Government. In this treaty France and Spain recognised Andorra as a
sovereign State, established diplomatic relations with the country and
undertook to facilitate its participation in international conferences
and organisations and its accession to conventions.
Although Andorra retains some special features - in particular
the institution of the Co-Princes - there is no doubt that, whatever
the position may have been hitherto, it is now a "State" for the
purposes of public international law.
PROCEEDINGS BEFORE THE COMMISSION
23. Mr Iribarne Pérez applied to the Commission on 18 March 1986.
He alleged a breach of Articles 3, 5, 6, 7, 8, 13 and 14 (art. 3,
art. 5, art. 6, art. 7, art. 8, art. 13, art. 14) of the Convention.
24. On 19 January 1994 the Commission declared the application
(no. 16462/90) admissible in so far as it concerned the complaint that
the applicant was not able to take proceedings in a French court by
which the lawfulness of his detention could be decided; it declared the
remainder of the application inadmissible. In its report of
28 June 1994 (Article 31) (art. 31), it expressed the opinion, by nine
votes to nine with the President's casting vote, that there had been
no breach of Article 5 para. 4 (art. 5-4) of the Convention. The full
text of the Commission's opinion and of the two dissenting opinions
contained in the report is reproduced as an annex to this judgment (1).
_______________
1. Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 325-C of
Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
25. In their memorial the Government asked the Court to
"hold that there has been no breach of Article 5 para. 4
(art. 5-4) of the Convention in the instant case".
AS TO THE LAW
ALLEGED VIOLATION OF ARTICLE 5 PARA. 4 (art. 5-4) OF THE CONVENTION
26. The applicant complained that there were no proceedings he could
take in the French courts to have the lawfulness of his detention
reviewed, and in particular that he had not been able to avail himself
of the procedures laid down in Articles 713-1 et seq. of the Code of
Criminal Procedure (see paragraph 16 above). He relied on Article 5
para. 4 (art. 5-4) of the Convention, which provides:
"Everyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings by which the lawfulness of
his detention shall be decided speedily by a court and his
release ordered if the detention is not lawful."
He referred to the De Wilde, Ooms and Versyp v. Belgium judgment
of 18 June 1971 (Series A no. 12, pp. 40-41, para. 76), according to
which the decision depriving a person of his liberty had to be made by
a "court" within the meaning of Article 5 para. 4 (art. 5-4), that is
to say an authority affording the fundamental procedural safeguards
applied in matters of deprivation of liberty, which meant that the
procedure followed had to be judicial in character and to give the
individual concerned guarantees appropriate to the kind of deprivation
of liberty in question. He had not had the benefit of all the
safeguards inherent in such a procedure. Firstly, he had not been able
to appeal against the judgment of the Tribunal de Corts, since Andorran
law at the material time did not provide for a system of appeal;
secondly, he had been convicted on the basis solely of custom, and not
of a statute precisely defining the offence he stood accused of and
laying down the corresponding penalties.
In any event, he continued, the theory of incorporated review did
not apply where the decision depriving a person of his liberty had been
made by the courts of a State not party to the Convention. At the time
when the Tribunal de Corts gave judgment, not only had Andorra not
signed the Convention but in addition it was not a State based on the
rule of law and had neither a Constitution nor a criminal code.
There would have been no point in bringing an action alleging a
flagrantly unlawful act (voie de fait); as the Court had noted in its
judgment of 26 June 1992 in the case of Drozd and Janousek v. France
and Spain (Series A no. 240, p. 32, para. 103), such a remedy had not
yet had the effect of putting an end to detention resulting from an
Andorran decision, and the French courts did not regard themselves as
having jurisdiction to assess the lawfulness of criminal convictions
pronounced in the Principality.
27. In the Government's submission, Articles 713-1 et seq. of the
Code of Criminal Procedure provided for a review not of the lawfulness
of the detention in France of persons convicted abroad but of the
conformity of the sentence imposed abroad with the sentence laid down
in French law for the same offence. Moreover, the provisions did not
apply to transfers resulting from neighbourly relations agreements,
such as the international custom governing relations between France and
Andorra.
It would be paradoxical and contradictory if the applicant,
lawfully detained after conviction by a competent court, were
nevertheless to be able to rely successfully on Article 5 para. 4
(art. 5-4). If, however, the Court were to take that approach,
proceedings whereby it could be verified whether there had been a
flagrant denial of justice would suffice. That purpose could be served
by an action for a flagrantly unlawful act in the civil courts. The
only reason why the French courts had never given judgment on such an
action brought by a person convicted in Andorra and transferred to
France was the very small number of prisoners in the applicant's
position.
28. In its decision of 19 January 1994 on the admissibility of the
application, the Commission dismissed as manifestly ill-founded
Mr Iribarne Pérez's complaint of a violation of Article 5 para. 1 (a)
(art. 5-1-a) of the Convention. As it had not found any flagrant
denial of justice, "although it [was] possible that the proceedings in
issue were not entirely compatible with Article 6 (art. 6) of the
Convention", it took the view that the applicant's detention in France
in pursuance of the Andorran court's decision was lawful detention
after conviction by a competent court within the meaning of Article 5
para. 1 (a) (art. 5-1-a). In its report of 28 June 1994 it concluded
that the situation complained of was comparable to one where conviction
had been pronounced by a court of the State administering enforcement
of his sentence, and that accordingly the applicant could not rely,
under Article 5 para. 4 (art. 5-4), on a right to have the lawfulness
of his detention reviewed by another court.
29. The Court is not required to ascertain whether the criminal
proceedings conducted against the applicant in Andorra, which led to
his conviction by the Tribunal de Corts, satisfied each of the
conditions laid down in Article 6 (art. 6) (see the Drozd and Janousek
judgment previously cited, p. 34, para. 110). Moreover, regard being
had to the Commission's decision on admissibility, the Court does not
have to consider the proceedings and the judgment in question from the
standpoint of Article 5 para. 1 (art. 5-1) either. Its task is limited
to determining whether, under Article 5 para. 4 (art. 5-4), the
lawfulness of the applicant's detention should have been reviewed in
France.
30. The Court refers to its case-law on this question (see the
De Wilde, Ooms and Versyp judgment previously cited and the Engel and
Others v. the Netherlands judgment of 8 June 1976, Series A no. 22).
The review required by Article 5 para. 4 (art. 5-4) is incorporated in
the decision depriving a person of his liberty when that decision is
made by a court at the close of judicial proceedings; this is so, for
example, where a sentence of imprisonment is pronounced after
"conviction by a competent court" within the meaning of Article 5
para. 1 (a) (art. 5-1-a) of the Convention. Only the "initial
decision" is contemplated, not "an ensuing period of detention in which
new issues affecting the lawfulness of the detention might subsequently
arise" (see, among other authorities, the X v. the United Kingdom
judgment of 5 November 1981, Series A no. 46, p. 22, para. 51).
However, Article 5 para. 4 (art. 5-4) sometimes requires the
possibility of subsequent review of the lawfulness of detention by a
court. This usually applies to the detention of persons of unsound
mind within the meaning of paragraph 1 (e) (art. 5-1-e), where the
reasons initially warranting confinement may cease to exist: "... it
would be contrary to the object and purpose of Article 5 (art. 5) ...
to interpret paragraph 4 (art. 5-4) thereof ... as making this category
of confinement immune from subsequent review of lawfulness merely
provided that the initial decision issued from a court" (see, in
particular, the Winterwerp v. the Netherlands judgment of
24 October 1979, Series A no. 33, p. 23, para. 55; the X v. the United
Kingdom judgment previously cited, pp. 22-23, para. 52; and the Luberti
v. Italy judgment of 23 February 1984, Series A no. 75, p. 15,
para. 31).
The same principle applies to the detention "after conviction by
a competent court" mentioned in paragraph 1 (a) (art. 5-1-a), but only
in certain quite specific circumstances. These include, for example,
the placing of a recidivist at the Government's disposal in Belgium
(see the Van Droogenbroeck v. Belgium judgment of 24 June 1982,
Series A no. 50), the continuing detention of a person sentenced to an
"indeterminate" or "discretionary" life sentence in Great Britain (see
the Weeks v. the United Kingdom judgment of 2 March 1987, Series A
no. 114, and the Thynne, Wilson and Gunnell v. the United Kingdom
judgment of 25 October 1990, Series A no. 190-A) and the detention for
security reasons of a person with an underdeveloped or permanently
impaired mental capacity in Norway (E. v. Norway judgment of
29 August 1990, Series A no. 181-A).
31. In the Court's view, the fact that Mr Iribarne Pérez was detained
in France after his conviction in Andorra is not a circumstance of this
kind. As in the case of Drozd and Janousek v. France and Spain, it
regards the Tribunal de Corts as the "competent court". The review
required by Article 5 para. 4 (art. 5-4) was, therefore, incorporated
in its judgment.
32. In any event, the Court, like the Commission, does not perceive
in the instant case any flagrant denial of justice. It notes in
particular that Mr Iribarne Pérez did not allege any infringement of
the essential rights of the defence; he was assisted by a lawyer, had
a public hearing and was served with a copy of the judgment. The Court
further notes that the applicant did not question the impartiality of
the Tribunal de Corts.
33. In conclusion, there has been no breach of Article 5 para. 4
(art. 5-4).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no breach of Article 5 para. 4
(art. 5-4) of the Convention.
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 24 October 1995.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar