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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, [1995] ECHR 43, (1996) 22 EHRR 153

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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

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