European Court of Human Rights - case of Drozd and Janousek v. France and Spain (1992)


In the case of Drozd and Janousek v. France and Spain*,

The European Court of Human Rights, taking its decision in

plenary session pursuant to Rule 51 of the Rules of Court and

composed of the following judges:

Mr R. Ryssdal, President,

Mr J. Cremona,

Mr Thór Vilhjálmsson,

Mr F. Gölcüklü,

Mr F. Matscher,

Mr L.-E. Pettiti,

Mr B. Walsh,

Mr R. Macdonald,

Mr C. Russo,

Mr R. Bernhardt,

Mr A. Spielmann,

Mr J. De Meyer,

Mr N. Valticos,

Mr S.K. Martens,

Mrs E. Palm,

Mr R. Pekkanen,

Mr A.N. Loizou,

Mr F. Bigi,

Sir John Freeland,

Mr A.B. Baka,

Mr M.A. Lopes Rocha,

Mr L. Wildhaber,

Mr J.A. Carrillo Salcedo, ad hoc judge,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy


Having deliberated in private on 23 January and 27 May 1992,

Delivers the following judgment, which was adopted on the

last-mentioned date:


* Note by the Registrar: The case is numbered 21/1991/273/344.

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.



1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 8 March 1991,

within the three-month period laid down by Article 32 para. 1 and

Article 47 (art. 32-1, art. 47) of the Convention for the Protection

of Human Rights and Fundamental Freedoms ("the Convention"). It

originated in an application (no. 12747/87) against the French

Republic and the Kingdom of Spain lodged with the Commission under

Article 25 (art. 25) on 26 November 1986 by Mr Jordi Drozd, a

Spanish citizen, and Mr Pavel Janousek, a Czechoslovak citizen.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and the declarations whereby France and Spain

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46). The object of the request was to obtain a decision as to

whether or not the facts of the case disclosed a breach by France of

its obligations under Articles 5 and 6 (art. 5, art. 6) and by Spain

of its obligations under Article 6 (art. 6).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicants stated

that they wished to take part in the proceedings and designated the

lawyer who would represent them (Rule 30).

3. Subject to the following, the Chamber to be constituted

included ex officio Mr L.-E. Pettiti, the elected judge of French

nationality, Mr J.M. Morenilla, the elected judge of Spanish

nationality (Article 43 of the Convention) (art. 43), and

Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). In

a letter to the President of 18 March 1991 Mr Morenilla stated that

he wished to withdraw pursuant to Rule 24 para. 2, as he had

previously acted as the Agent of the Spanish Government before the


On 21 March the Registrar, on the President's instructions,

asked the Agents of the French and Spanish Governments to inform him

whether they considered that France and Spain had a "common

interest" within the meaning of Rule 25 para. 1. They answered in

the negative, on 4 and 5 April respectively.

Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and on 23 April, in the presence of the Registrar,

drew by lot the names of six members of the Chamber, namely

Mrs D. Bindschedler-Robert, Mr C. Russo, Mr A. Spielmann,

Mr J. De Meyer, Mrs E. Palm and Mr R. Pekkanen (Article 43 in fine

of the Convention and Rule 21 para. 4) (art. 43). On 10 May the

Agent of the Spanish Government informed the Registrar that

Mr J.A. Carrillo Salcedo, professor at the University of Seville,

had been appointed an ad hoc judge (Article 43 of the Convention and

Rule 23) (art. 43).

4. Mr Ryssdal, through the Registrar, consulted the Agents of

the French and Spanish Governments, the Delegate of the Commission

and the lawyer for the applicants on the organisation of the

procedure (Rule 37 para. 1 and Rule 38). In accordance with the

orders made in consequence, they filed their memorials on

4 November, 28 October, 21 November and 10 December 1991


5. In letters received at the registry on 19 and 25 April and

17 June 1991, Mr F. Ruhlmann, a lawyer practising in Strasbourg,

submitted applications on behalf of the Executive Council of the

Principality of Andorra under Rules 37 para. 2 and 41 para. 1. On

25 September Mr J. Cremona, the Vice-President of the Court,

replacing Mr Ryssdal, who was unable to attend, decided to grant him

leave to submit written observations on the opinions expressed in

the Commission's report of 11 December 1990; however, also on that

day, the Chamber decided that as things stood it was not necessary

to call him at the hearing.

The Registrar received the said observations on 29 November.

6. On 25 September the Chamber decided to relinquish

jurisdiction forthwith in favour of the plenary Court (Rule 51).

Mr L. Wildhaber, who took up his duties before the hearing, replaced

Mrs Bindschedler-Robert, who had resigned from the Court (Rule 2

para. 3).

7. Mr Drozd (22 March 1991 and 2 January 1992), Mr Janousek

(27 March and 6 December 1991) and the Agent of the French

Government (3 January 1992) wrote to the Registrar with reference to

whether it would be possible for the applicants to appear in person

at the hearing despite the fact that they were in prison. The said

Government stated that they waived reliance in the instant case on

the declaration contained in their instrument of ratification, whose

intention was to exclude persons in prison from the benefit of

Article 4 para. 1 (a) of the European Agreement of 6 May 1969

relating to Persons Participating in Proceedings before the European

Commission and Court of Human Rights.

8. On 14 January 1992 counsel for the applicants submitted a

claim for just satisfaction.

9. As directed by the President, the hearing took place in

public in the Human Rights Building, Strasbourg, on 21 January 1992.

The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the French Government

Mr J.-P. Puissochet, Director of Legal Affairs,

Ministry of Foreign Affairs, Agent,

Mrs M.-R. d'Haussy, special adviser to the

Department of Legal Affairs, Ministry of

Foreign Affairs,

Miss M. Picard, magistrat on secondment to the

Department of Legal Affairs, Ministry of

Foreign Affairs,

Mr P. Darbeda, magistrat on secondment to the

Department of Prison Affairs, Ministry of


Mrs C. Cosson, magistrat on secondment to the

Department of European and International

Affairs, Ministry of Justice,

Mr J.-C. Sacotte, magistrat, Counsel;

(b) for the Spanish Government

Mr J. Borrego Borrego, Head of the

Legal Department of Human Rights,

Ministry of Justice, Agent,

Mr J.A. Pastor Ridruejo, Head of the

International Legal Affairs Department,

Ministry of Foreign Affairs, Counsel;

(c) for the Commission

Mr H. Danelius, Delegate;

(d) for the applicants

Mr M. Bloch, avocat, Counsel,

Mrs Y. Junient, avocate, Adviser.

The Court heard addresses by Mr Puissochet for the French

Government, Mr Pastor Ridruejo for the Spanish Government,

Mr Danelius for the Commission and Mr Bloch for the applicants, as

well as their replies to its questions.

Mr Janousek was present in person at the hearing.

10. The Agent of the French Government produced various

documents at the hearing and on 30 January.

On 24 February the Agent of the Spanish Government gave

written answers to certain of the Court's questions.


11. Mr Jordi Drozd, a Spanish citizen, and Mr Pavel Janousek, a

citizen of Czechoslovakia, are serving a term of fourteen years'

imprisonment in France, following their conviction by a court of the

Principality of Andorra for an armed robbery committed in Andorra la

Vella. Mr Drozd is in prison at Muret (Haute-Garonne), Mr Janousek

at Yzeure (Allier).

I. The particular circumstances of the case

12. On 6 March 1986 R., a representative of the jewellery firm

of F. in Barcelona, was staying in a hotel in Andorra la Vella.

While he was in his room he was attacked by two persons who he

stated stole from him jewels worth 65,000,000 pesetas and

33,000 pesetas in cash.

A. Facts not in dispute

13. There are a number of facts which are not in dispute between

the respondent Governments and the applicants.

1. The investigation

14. Following the criminal complaint brought by R. against

persons unknown for armed robbery, the police arrested Mr Drozd and

Mr Janousek on 7 March.

15. An investigation was then opened by one of the episcopal

batlles (see paragraph 49 below).

The police arranged a first "identification test" at the

police station, which was apparently unsuccessful, followed by a

second test in the course of which R. identified the applicants as

the persons who had committed the robbery. However, the defence

criticised the conditions in which the "tests" in question had taken


2. The trial

16. The applicants were sent for trial and appeared before the

Tribunal de Corts (see paragraph 51 below) on 26 March 1986. The

court was composed of the Judge of Appeals, H.P., an honorary judge

at the Toulouse Court of Appeal, nominated by the French Co-Prince,

and two assessors, N.T., taking the place of the French veguer, by

whom he had been appointed, an honorary judge at the Montpellier

Court of Appeal, and F.B., the episcopal veguer, a Spanish jurist

appointed by the Bishop of Urgel (see paragraph 52 below).

17. The court gave judgment on the same day, in Catalan, at a

public hearing. The applicants were served with the Spanish text on

the following day.

The court found both defendants guilty, sentenced them to

fourteen years' imprisonment, and ordered them to be expelled from

the territory of the Principality.

18. Mr Drozd and Mr Janousek lodged the only appeal which was

then open to them, an appeal to the same judges to reconsider their

ruling. This was dismissed by the Tribunal de Corts on 3 July 1986.

19. Both applicants chose to serve their sentences in France

rather than Spain (see paragraph 56 below), and were presumably

given by the French veguer's office a French translation of the

judgment convicting them, this being the usual practice.

20. They did not bring an appeal (recurs de suplicació) to the

Tribunal Superior de Corts, a new appeal procedure introduced by the

decree of 13 July 1990 (see paragraph 54 below) and used,

successfully on occasion, by other convicted defendants, including

another client of their counsel. This decree, the text of which was

not communicated to Mr Drozd and Mr Janousek or their counsel, was

published in the Butlletí Oficial del Principat d'Andorra on

21 July.

B. Contested facts

21. The respondent Governments and the applicants submitted

differing versions of certain facts.

1. The presence of an episcopal batlle at the court's


22. While conceding that they were unable to prove this, as they

had obviously not been present, the applicants claimed that the

episcopal batlle in charge of the investigation had been present at

the deliberations of the Tribunal de Corts.

23. According to the respondent Governments, that was not the

case, nor could it have been.

2. The inadequate linguistic knowledge of one of the

members of the court

24. The applicants maintained that the French assessor had not

had an adequate command of Spanish, still less of Catalan, the

language in which the hearing was conducted, which deprived him of

any real possibility of taking part in the proceedings.

25. The French Government stated that a knowledge of Catalan and

at least an understanding of Spanish were among the criteria for the

appointment of French judges called upon to carry out judicial

functions in Andorra. The Government added that in the present case

all three members of the court had been of Catalan origin, spoke and

understood Catalan perfectly, and had made oral interventions during

the hearing.

The Spanish Government noted that it was the practice of the

Tribunal de Corts to put questions and receive answers in French or

Spanish, if a defendant understood one of those languages (in this

case both applicants understood Spanish) and did not ask for the

assistance of an interpreter (it did not appear from the record of

the hearing that they had so asked). At no time had Mr Drozd and

Mr Janousek been questioned in Catalan.

3. The failure to "isolate" the witnesses and the

victim before giving evidence

26. The applicants maintained that the witnesses had not been

"isolated" before giving their evidence, and that the alleged victim

had heard the statements of the defendants before he gave evidence.

27. The Government considered these claims to be incorrect,

having regard to the provisions of Article 161 of the Andorran Code

of Criminal Procedure in the version in force at the time.

4. The lack of assistance of an interpreter

28. Mr Janousek claimed that he had not had the benefit of the

assistance of an interpreter during the investigative stage; the

interpretation provided at the trial had been incomplete, and this

had prevented him from taking an active part in the hearing and in

particular from commenting on the witnesses' evidence.

29. According to the information given to the Commission by the

Governments, an interpreter appointed by the Spanish authorities had

been on duty during the entire proceedings, and there were no

reasons for considering that the oral translations done by him had

been inaccurate.

Before the Court, the Spanish Government produced documents

showing that a German-speaking interpreter, and later another

interpreter, had acted during the investigation. They conceded,

however, that the record of the trial was silent on this point.

5. The lack of assistance of a lawyer

30. Finally, Mr Janousek complained that he had not had the

assistance of a lawyer during the investigation.

31. The Governments stated that the applicants had been informed

when they were charged of their right to nominate a lawyer of their

choice to defend their interests, and that they had made use of this


II. The Andorran legal system

32. Andorran public law derives from two pareatges or arbitral

awards of 1278 and 1288. These asserted the principle of equality

of rights between the feudal overlords, namely the Count of Foix

(whose rights were subsequently transferred to the King of France

and later to the President of the French Republic) and the Bishop of

Urgel. On the basis of these pareatges the overlords in the course

of time granted privileges to the people of Andorra and issued

decrees; these decrees were supplemented by customary law relating

inter alia to the apportionment of powers among the institutions of

the Principality.

33. In civil cases the Andorran courts apply customary law as

set out in the Manual digest of 1748 and the Politar of 1767,

supplemented by Roman law, Catalan law and canon law. In criminal

matters the relevant sources of law are various decrees of the

veguers and customary law, which were codified in 1984. Finally,

the relevant laws in administrative cases are the provisions issued

by the parish councils and the General Council of the Valleys and

those decreed by the Permanent Delegates (see paragraphs 40, 42 and

44 below).

A. Institutions

1. The Co-Princes

34. Andorra is ruled by two Co-Princes, the President of the

French Republic and the Bishop of Urgel (province of Lleida/Lerida,


The latter has no public function in Spain, and since the

agreement between the Holy See and the Kingdom of Spain of

19 August 1976 his appointment has been the exclusive responsibility

of the Pope. Canon law does not impose any conditions as to

nationality, and the bishop is very often a Spanish or Andorran

citizen. According to the Spanish courts (Audiencia Nacional,

judgments of 3 October 1990 and 25 April 1991), he enjoys the

privileges and immunities which foreign heads of state have under

international law.

The Co-Princes' rights and prerogatives are attached to

their offices and are consequently acquired and lost with them.

(a) Their powers

(i) Joint powers

35. According to consistent and constant practice,

the Co-Princes exercise their powers jointly. This general rule is

based on custom and demonstrates the equality between the

Co-Princes; there are only very limited exceptions to it.

(ii) Sole powers

36. Each Co-Prince also has powers which are his own. These are

the appointment of a veguer and Permanent Delegate, and of the

members of one of the two "Senates" of the Higher Court (see

paragraphs 37, 39 and 66 below); the General Council of the Valleys,

however, has the right of nomination of the batlles (see

paragraph 49 below) and the notaries, which limits the freedom of

the episcopal Co-Prince and the French veguer. There is also the

right to decide on appeals en queixa - survivals from the feudal

right of petition - brought against administrative regulations and

decisions or laws passed by the General Council of the Valleys.

(b) Their representatives

(i) The veguers

37. The veguers are the direct representatives of the Co-Princes

in Andorra; they reside there and have Andorran nationality during

their term of office. They are appointed for an indefinite period,

the French veguer (a diplomat) by the French Co-Prince and the

episcopal veguer (generally a Spanish or Andorran jurist) by the

episcopal Co-Prince.

38. They have powers of a legislative nature which are exercised

by means of decrees and cover a number of fields: the organisation

of civil and criminal justice and procedure; immigration; public

safety, public order and the protection of morals. They also carry

out tasks of an executive nature: command of the Andorran militia,

which includes all men aged from sixteen to sixty years, and of the

Andorran police; issue or refusal of long-term residence permits to

foreigners; validation of Andorran passports; examination of

requests for acquisition of nationality. Finally, they have

judicial functions: they carry out investigations for decisions of

the Co-Princes on appeals en queixa (see paragraph 36 above) and are

entitled to sit on the Tribunal de Corts (see paragraph 52 below).

(ii) The Permanent Delegates

39. The Permanent Delegates, an institution set up at the end of

the last century, are not resident in Andorra. The French Permanent

Delegate is the Prefect of the Department of Pyrénées-Orientales and

is assisted in his duties by part of the prefect's office. The

office of episcopal Permanent Delegate is traditionally given to the

Vicar General of the Diocese of Urgel.

40. The two Delegates have legislative, judicial and

administrative powers, which they exercise jointly on behalf of the

Co-Princes. In particular, they issue decrees - sometimes very

important ones - in the "constitutional" field (for example, the

creation of the parish of Les Escaldes Engordany in 1978 and the

establishment of the Court of Taxes in 1979) and the

"administrative" field other than economic (for example, the Code of

Andorran Nationality of 1977).

2. The "popular" representative bodies

41. The Principality also has a number of institutions whose

members are elected by universal suffrage.

(a) The parish councils

42. The territory of Andorra is divided into seven parishes,

each of which is administered by a council (comu) consisting of ten

to fourteen people elected for four years, who choose from among

their number a consol major and a consol minor. It manages the

parish's affairs and property, and also has power to make

regulations. Appeals to the Government can be brought against its


(b) The quart councils

43. A quart is a village or hamlet and exists in certain

parishes only. Its council consists of one member from each

household (casa), and the members appoint a representative

(llevador). In some cases it has administrative functions.

(c) The General Council of the Valleys

44. The origin of the General Council of the Valleys goes back

to the creation of the Council of the Land in 1419. It was

restructured in 1886 and again in 1981 and is now defined as "the

political assembly most representative of the Andorran people". It

has twenty-eight members (four per parish) who are elected for four

years by all Andorrans over the age of eighteen. The members elect

a syndic general (President) and a sub-syndic (Vice-President) and

work through juntas (committees).

The General Council passes laws, approves the budget of the

Principality and exercises oversight over the Government. In

practice, the Co-Princes do not intervene in areas where it has

competence, except when they are called on to decide an appeal en

queixa (see paragraph 36 above).

The General Council chooses, from among its own members or

from outside, the Chief Executive, who in turn appoints the other

four to six members of the Executive Council. This institution was

recently set up by the Co-Princes (decree of 15 July 1981 "on the

process of institutional reform"). The Executive Council has a

variety of duties: implementation of decisions of the General

Council; proposing texts for adoption; preparation and subsequent

implementation of the budget; management and supervision of the

administration and public services.

The General Council may adopt, by at least nineteen votes, a

motion of no confidence in the Executive Council.

(d) The Magna Assembly

45. The Magna Assembly (Assemblea magna) may be convened when

decisions of exceptional importance are to be taken. It consists of

the General Council, the consols and four other representatives from

each parish, who are usually elected at a "meeting of the people".

B. The legal system

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 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 (see paragraphs 37-38 above) 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 (see paragraph 16 above). 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


(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 [as in the case of the

applicants] 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


(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.

III. The international "status" of Andorra

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.

IV. The outlook for change

75. The development of the institutions and international

"status" of the Principality of Andorra has for some time now been

the subject of discussions and plans.

76. The French Co-Prince referred to these on 26 November 1991

in a speech made at the Elysée Palace in Paris on the occasion of

the presentation of the questia, a symbolic sum of money which is

paid to him in odd years:

"Here we are once more gathered together, in accordance with

a custom which, as you know, is several centuries old, in

order to give expression to the continuity and strength of

the links which unite the people of Andorra with their


We set great store by this ceremony, which for the sixth

time gives me the opportunity to receive here the elected

representatives of the Andorran people and to discuss the

affairs of the Principality with them personally. I am

especially pleased to welcome today those of them whom I

have not yet had the pleasure of meeting since their

assumption of their high offices.

By coming here for the payment of the questia you

demonstrate the depth of your faithfulness to our

traditions. This sentiment is not one of nostalgia, or so I

presume, for you are at the same time resolutely looking to

the future; it is your firm will to play a full part in the

progress of the modern world. The remarkable economic

progress of the Valleys during recent decades bears witness

to this, as does the modernisation of your institutions,

which was embarked upon ten years ago and has gained new

momentum in the last two years.

Since our last meeting in 1989 a decisive step has been

taken for the future of the Principality. This relates to

the constitution which the elected representatives of

Andorra have wished the Principality to be endowed with. At

the last ceremony of the questia I stated my willingness to

encourage developments in the internal and international

order, where they responded to the legitimate aspirations of

the people of Andorra. In this spirit I naturally gave my

approval and support to the unanimous request of the General

Council of the Valleys to draft a constitution with the

agreement of the episcopal Co-Prince and the active support

of the Andorran representatives, whose high sense of the

public interest I wish to salute here. Agreement was

reached on the working method, the objectives and the

structure of the draft constitution.

Thus there have already been written into the draft, on

which much work has already been done, such fundamental

principles as the establishment of a democratic sovereign

State under the rule of law, recognition of the sovereignty

of the people, respect for the territorial organisation of

the parishes which has come down from history, the guarantee

of rights and freedoms, the institution of a parliamentary

system provided with rules to ensure the authority of the

Government and an effective control by the General Council

of the Valleys.

You are likewise resolved to simplify and unify the

organisation of the legal system, while preserving the

greatest respect for its independence, in order better to

ensure and guarantee the rights of those subject to the law,

taking as your inspiration the principles and rules defined

in the European Convention on Human Rights; no doubt while

awaiting the accession of the Principality to that


I fully agree with these principles and I am delighted at

the significant results obtained so far. I congratulate you

on them.

I have confidence in your will and your capacity for

carrying on the work of drafting the constitution at the

speed at which it has progressed until now, thanks to the

excellent spirit of co-operation which inspires the joint

meetings of your delegation and those of the two Co-Princes.

I am indeed convinced that we can bring this task to a

successful conclusion with a view to swiftly and

democratically putting in place the constitution drawn up

jointly by the General Council of the Valleys and the

Co-Princes. This method of permanent consultation has

demonstrated its effectiveness. The tripartite commission

has met nine times since April 1991, at the House of the

Valleys in Andorra. Its work, which has invariably been

constructive, has made it possible to avoid

misunderstandings and overcome all sorts of difficulties.

We do not conceal the facts, however. You are within sight

of the goal, but the path to follow to reach it is still

difficult. That is inevitable; indeed, it is natural.

Every innovative work, especially in the political field, is

accompanied by hopes and fears, and arouses the necessary

democratic debate, as well as legitimate ambitions and

fervent personal commitment.

I do not think that anything will weaken your determination.

Mountain-dwellers like you know how to save their breath and

measure their step according to the length or difficulty of

the ascent. You are experienced men, patient men. You

know, and you do not need me to tell you, that once the way

to the summit has been decided on by common consent, there

is no choice other than to succeed or fail together.

You have very recently provided proof of your sense of your

responsibilities by coming together despite your political

differences so as the better to overcome the obstacles and

attain the goal you have set yourselves.

The ambitious and proud people you represent know the value

of effort and of perseverance. I cannot encourage you too

much to continue with your task, certain as I am that you

will know how to legislate, govern, administer, give justice

and in short assume full responsibility for the

Principality, which will soon be completely devolved to you.

You will doubtless, at least to start with, have to act with

boldness, but also with care to preserve the richness of

your traditions and the identity of the parishes which

originally joined together to form Andorra.

In this task, on which considerable progress has now been

made, I am with you so that social justice may prevail, for

without that there can be no true economic progress, and so

that the elected representatives of Andorra may exercise

fully the internal sovereignty of Andorra, without which

there can be no international recognition.

France and no doubt Spain, as your neighbours, will surely

be the first to establish relations of friendship and co-

operation with the future State of Andorra.

The signing of the association agreement between the EEC and

Andorra was the first step towards the integration of the

Principality into the European Economic Area. Other steps

will follow. The interest shown by you in particular in the

regulation of the banking profession and the control of

international flows of money demonstrates your concern not

to stay apart from the new forms of solidarity which are

coming into being so that law and fairness can prevail in

the international order.

You will henceforth be fully responsible for the

Principality. The new institutions will be the cement,

freely consented to, holding your nation together. Your

freedom, given expression in elections, will strengthen your

traditions and allow your country to join the international

community while still affirming the power of its special

features, its history and culture.

That, gentlemen, is what I wished to say to you. You will

be so kind as to pass the essence of it on to the people of

Andorra, so now we have a few moments left in which to stay

together and improve our mutual acquaintance, passing some

time in the useful, fruitful and friendly way which our

relationship demands." (French Ministry of Foreign Affairs,

Bulletin d'information of 27 November 1991 (231/91))


77. In their application to the Commission (no. 12747/87) of

26 November 1986 Mr Drozd and Mr Janousek put forward two series of


(a) The first series of complaints, based on Article 6

(art. 6) of the Convention, were directed against France and Spain,

who were regarded as responsible at international level for the

conduct of the Andorran authorities.

i. Certain complaints were common to both applicants, in

reliance on Article 6 paras. 1 and 3 (d) (art. 6-1, art. 6-3-d).

These were that they had not had a fair trial before the Tribunal de

Corts because:

- two of the judges were the representatives of the

Co-Princes in Andorra and the superior officers of the

police (see paragraph 16 above);

- the judge in charge of the investigation was present at

the court's deliberations in chambers (see paragraph 22


- one of the judges knew little Spanish and less Catalan,

Catalan being the language of the proceedings (see

paragraph 24 above);

- the witnesses had not been "isolated" before giving

evidence and the victim of the theft had heard the

defendants' statements before he gave evidence (see

paragraph 26 above).

ii. The other complaints were made by Mr Janousek alone, in

reliance on sub-paragraphs (b), (d) and (e) of Article 6 para. 3

(art. 6-3-b, art. 6-3-d, art. 6-3-e). He complained that he had not

received the assistance of an interpreter or a lawyer during the

investigation, nor a complete translation during the trial (see

paragraphs 28 and 30 above).

(b) The second group of complaints, based on

Article 5 para. 1 (art. 5-1) of the Convention, were directed

against France alone. Both applicants considered that their

imprisonment in France after being convicted by an Andorran court

was "unlawful" as there was no provision of French law relating to

the enforcement of such judgments.

78. The Commission declared the application admissible on

12 December 1989. In its report of 11 December 1990 (Article 31)

(art. 31) it expressed the opinion that there had not been a

violation of Article 6 (art. 6) either by France (ten votes to six)

or by Spain (twelve votes to four), nor had there been a violation

of Article 5 para. 1 (art. 5-1) by France (eight votes to eight,

with the President's casting vote). The complete text of its

opinion and of the six separate opinions contained in the report is

reproduced as an annex to this judgment*.


* Note by the Registrar: For practical reasons this annex will

appear only with the printed version of the judgment (volume 240 of

Series A of the Publications of the Court), but a copy of the

Commission's report is obtainable from the registry.



79. In their memorial the French Government asked the Court to

"declare the application introduced by Mr Jordi Drozd and

Mr Pavel Janousek inadmissible and, in the alternative,


80. The Spanish Government for their part made the following


"Neither France nor Spain may be considered as States

responsible for the actions of the Andorran judicial


Consequently it is not relevant to examine the question of

the alleged violation of Article 6 (art. 6) of the


In conclusion, there has been no violation by either Spain

or France of Article 6 (art. 6) of the Convention."

81. In his written observations, the Delegate of the Commission

asked the Court "to dismiss the [French] Government's objection

based on Article 26 (art. 26) of the Convention".




82. Mr Drozd and Mr Janousek complained that they had not had a

fair trial before the Tribunal de Corts. Mr Janousek also claimed

that he had not had the assistance of an interpreter or a lawyer

during the investigative stage, nor a complete translation during

the hearing. They relied on Article 6 (art. 6) of the Convention,

which reads as follows:

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a fair and public hearing

within a reasonable time by an independent and impartial

tribunal established by law.


3. Everyone charged with a criminal offence has the

following minimum rights:


(b) to have adequate time and facilities for the

preparation of his defence;

(c) to defend himself in person or through legal assistance

of his own choosing or, if he has not sufficient means to

pay for legal assistance, to be given it free when the

interests of justice so require;

(d) to examine or have examined witnesses against him and

to obtain the attendance and examination of witnesses on his

behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he

cannot understand or speak the language used in court."

They both regarded France and Spain as responsible at

international level for the conduct of the Andorran authorities.

83. In the opinion of the two respondent Governments and the

Commission, on the other hand, the conviction of the applicants by a

criminal court of the Principality of Andorra did not entail

responsibility on the part of France and Spain with respect to

Article 6 (art. 6).

The Governments raised several preliminary objections on

this point, as they had done before the Commission, while the

Commission declared the application admissible but then decided that

it did not have jurisdiction to examine the merits of the case from

the point of view of the Article (art. 6) in question.

A. The objection of lack of jurisdiction ratione loci

84. The two respondent Governments and the Commission agreed in

considering that the Convention did not apply on the territory of

Andorra, despite having been ratified by France and Spain.

85. In the opinion of the French Government the President of the

French Republic embodied "a duality in his person", to use an

expression from an opinion of the French Conseil d'Etat of

27 January 1953; he exercised his functions as Co-Prince of Andorra

on a personal basis (just as the King of France once did) and not in

the name of the French State or the French people, and was not their

mandatary or representative in this context; the consequence of this

autonomy was that France did not exercise any sovereignty over the

Valleys and could not enter into commitments on their behalf.

86. The Spanish Government maintained that only a declaration of

territorial extension made under Article 63 (art. 63) of the

Convention would have been capable of binding Spain with respect to

Andorra; however, there would be a legal obstacle to the making of

such a declaration, as the international relations of Andorra were

the exclusive responsibility of the Co-Princes jointly.

87. The Commission emphasised the complex and unusual nature of

the status of the Principality in public international law, and

stressed two points: firstly, the entity in question, often

described as sui generis, did not form part of either France or

Spain, so that the Convention could not be regarded as automatically

applicable on its territory; secondly, the practice of recent years

appeared to reflect agreement between the Co-Princes to regard

themselves as equals in the exercise of the international functions

of Andorra, with the effect that neither France nor Spain had

jurisdiction of their own to act on behalf of the Principality.

88. The applicants maintained that Andorra formed a "vacuum of

sovereignty" which was filled by the French Co-Prince, who was an

emanation of French sovereignty; international treaties, such as the

Convention, which had been ratified by France were therefore also

valid for Andorra.

89. The Court agrees in substance with the arguments of the

Governments and the opinion of the Commission. It also takes into

consideration certain circumstances which were not mentioned, or

only mentioned briefly, by those appearing before it.

To begin with, the Principality is not one of the members of

the Council of Europe, and this prevents it being a party to the

Convention in its own right (Article 66 para. 1) (art. 66-1). It

could no doubt have sought to be admitted as an "associate member"

of the organisation under Article 5 of the Statute; if its

application had been accepted by the Committee of Ministers, it

would have had the right, as Saarland had in 1950, to sign and

ratify the Convention. But it appears never to have taken any steps

to do this.

Secondly, the territory of Andorra is not an area which is

common to the French Republic and the Kingdom of Spain, nor is it a

Franco-Spanish condominium.

Moreover, the relations between the Principality and France

and Spain do not follow the normal pattern of relations between

sovereign States and do not take the form of international

agreements. The Court nevertheless notes that the development of

the institutions of Andorra, if continued, might allow Andorra to

"join the international community", as the French Co-Prince said on

26 November 1991 (see paragraph 76 above).

In short, the objection of lack of jurisdiction ratione loci

is well-founded.

90. This finding does not dispense the Court from examining

whether the applicants came under the "jurisdiction" of France or

Spain within the meaning of Article 1 (art. 1) of the Convention

because of their conviction by an Andorran court.

B. The objection of lack of jurisdiction ratione personae

91. The term "jurisdiction" is not limited to the national

territory of the High Contracting Parties; their responsibility can

be involved because of acts of their authorities producing effects

outside their own territory (see the Commission's decisions on the

admissibility of applications no. 1611/62, X v. the Federal Republic

of Germany, 25 September 1965, Yearbook, vol. 8, p. 158;

no. 6231/73, Hess v. the United Kingdom, 28 May 1975, Decisions and

Reports (DR) no. 2, p. 72; nos. 6780/74 and 6950/75, Cyprus v.

Turkey, 26 May 1975, DR 2, p. 125; nos. 7289/75 and 7349/76, X and Y

v. Switzerland, 14 July 1977, DR 9, p. 57; no. 9348/81, W. v. the

United Kingdom, 28 February 1983, DR 32, p. 190).

The question to be decided here is whether the acts

complained of by Mr Drozd and Mr Janousek can be attributed to

France or Spain or both, even though they were not performed on the

territory of those States.

92. According to the respondent Governments and the Commission,

the Tribunal de Corts and the other Andorran courts cannot be

regarded as French, Spanish or Franco-Spanish, nor even as

institutions subject to effective control by France or Spain or


93. The French Government did not accept that France could be

considered responsible for the judicial acts of Andorra on the

grounds that the courts of the Principality included French judges

and were under the control of the French courts.

On the first point, they acknowledged that serving or

retired French judges did carry out some judicial functions in

Andorra. However, they made certain observations with respect to

them. They were in a minority, as the batlles were Andorran

citizens, and they invariably acquired Andorran nationality when

taking up their office and lost it at the end of their service. If

they were still serving judges, the Ministry of Justice placed them

at the disposal of the French Co-Prince, who then proceeded to

appoint them. More generally, the practice of seconding officials

belonged to a long French tradition of judicial cooperation - in

particular with Monaco and with African States - and of the

independence of the judges in question with respect to their country

of origin. Moreover, the Higher Court of Perpignan (see

paragraph 66 above) was not a de facto French civil court, as it had

a different composition from that of a French court and did not

apply French law or follow French procedure.

On the second point, the Government stated that the French

courts had no direct or indirect power of supervision over judgments

and decisions given in the Principality. They conceded, however,

that different views had been taken in the case-law as regards the

legal analysis of relations between France and Andorra with respect

to jurisdiction. Thus the first civil division of the Court of

Cassation had held that the formality of an exequatur was not needed

for the enforcement of Andorran judgments in France (decisions of

6 January 1971, Elsen et autre c. Consorts Bouillot and c. Boudet,

Bulletin civil [Bull.] 1971, I, no. 2, pp. 1-2; decision of

8 February 1977, Boudet c. compagnie Le Patrimoine et autre, Bull.

1977, I, no. 69, pp. 55-56). This interpretation had not been

followed by the criminal division (judgment of 10 February 1987,

unreported) or the second civil division (judgment of

27 October 1966, Armengol c. Mutualité sociale agricole de

l'Hérault, Bull. 1966, II, no. 874, p. 609), and had been rejected

by several courts of appeal (Versailles, 10 October 1983, Consorts

Courtiol c. Chappard, Gazette du Palais 1984, jurisprudence,

pp. 229-231, with comments by Mr Bommart and Mr Gautron;

10 October 1983, Gauvain c. Chabard; Paris, 20 March 1991, Fortuny

Soler). The Conseil d'Etat (decision of 1 December 1933, Société

Le Nickel, Recueil Lebon 1933, p. 1132; opinion of 27 January 1953)

and the Jurisdiction Disputes Court (Tribunal des Conflits)

(decision of 2 February 1950, Radiodiffusion Française c. Société de

gérance et de publicité du poste de radiodiffusion Radio Andorre,

Recueil Lebon 1950, p. 652) did not accept that Andorran courts and

authorities had any French character.

94. The Spanish Government argued that the Tribunal de Corts, in

common with the other Andorran courts, represented an emanation of

the Co-Princes' historic "right of justice"; it gave its rulings in

their name and not on the basis of French and Spanish sovereignty.

The episcopal veguer, a member of that court who sat in the present

case (see paragraphs 16 and 52 above), was appointed by the

episcopal Co-Prince, the Bishop of Urgel; the bishop was a private

person, whose appointment had since 1976 been the exclusive

responsibility of the Holy See and who might very well not possess

Spanish nationality. Neither he nor his representatives in Andorra

could thus engage the responsibility of the Kingdom of Spain.

95. The applicants for their part claimed that France at least

had responsibility for the administration of justice in Andorra.

This was so in particular in their case, as the Tribunal de Corts

had included an honorary judge of the Toulouse Court of Appeal, as

Judge of Appeals, and an honorary judge of the Montpellier Court of

Appeal, sitting as an assessor (see paragraph 16 above). Both had

been appointed directly or indirectly by the French Co-Prince, and

had permitted various violations of Article 6 (art. 6) of the

Convention; in addition, they had tolerated the participation in the

proceedings of the episcopal veguer, who also had legislative and

executive powers.

96. The Court, like the Commission, accepts the arguments of the

Governments. Whilst it is true that judges from France and Spain

sit as members of Andorran courts, they do not do so in their

capacity as French or Spanish judges. Those courts, in particular

the Tribunal de Corts, exercise their functions in an autonomous

manner; their judgments are not subject to supervision by the

authorities of France or Spain.

Moreover, there is nothing in the case-file which suggests

that the French or Spanish authorities attempted to interfere with

the applicants' trial.

Finally, it should be recalled that the secondment of judges

or their placing at the disposal of foreign countries is also

practised between member States of the Council of Europe, as is

demonstrated by the presence of Austrian and Swiss jurists in


97. In short, the objection of lack of jurisdiction ratione

personae must also be upheld.

98. This conclusion means that it is not necessary to examine

the other preliminary objections brought by the French and Spanish

Governments on this point.


99. The applicants claimed that they were victims of a violation

of Article 5 para. 1 (art. 5-1) of the Convention, which reads, as

far as relevant:

"Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the

following cases and in accordance with a procedure

prescribed by law:

(a) the lawful detention of a person after conviction by a

competent court;


They argued that their detention in France was unlawful for

want of a legal basis, and was against ordre public (public policy)

in the absence of any control by the French courts.

A. The preliminary objection of the French Government

100.The French Government objected, as they had done before the

Commission, that the complaint was inadmissible on the grounds of

failure to exhaust domestic remedies.

The Court, referring to its consistent case-law (see, as the

most recent authority, the B. v. France judgment of 26 March 1992,

Series A no. 232-C, p. 45, paras. 34-36), considers that it has

jurisdiction to examine the objection, despite the contrary opinion

of the Commission.

101.The French Government argued that Mr Drozd and Mr Janousek

had neglected two remedies which were available to them before the

French courts and would have given them the opportunity to refer to

Article 5 (art. 5) of the Convention: bringing criminal proceedings,

joining in as civil parties, against the officials or judges who

were responsible for their detention; or bringing an action for a

flagrantly unlawful act (voie de fait) by the said officials or


102.The applicants admitted that they had not made use of either

of these possibilities, but argued that they could not have remedied

the situation complained of.

103.The Court, in agreement with the Commission, finds that the

aim of the remedies in question is to obtain compensation for damage

caused by deprivation of liberty and to impose sanctions on public

officials. While they may have the indirect effect of putting an

end to a person's detention, they have not hitherto brought about

such a result where the detention originates from a decision by an

Andorran court. In such cases, as the Government themselves pointed

out before the Commission, the French courts do not regard

themselves as having jurisdiction to assess the lawfulness of

criminal convictions pronounced in the Principality.

The objection must therefore be dismissed.

B. The merits of the complaint

104.The lawfulness of the detention raises two distinct but

closely linked questions in this case: firstly, the question of

whether there was a sufficient legal basis in French law; and

secondly, the question of whether the French courts should have

exercised any control in respect of the judgment pronounced in


1. The legal basis of the detention in issue

105.The applicants considered that their detention in France was

unlawful; it lacked a legal basis, as there was no French statutory

provision, nor any international treaty which permitted the

enforcement on French territory of criminal convictions pronounced

in the Principality of Andorra.

106.The Government did not deny that these elements were absent,

but in their opinion an adequate legal basis was provided by

international custom and by the French and Andorran domestic law

which implemented that custom.

The custom that persons convicted by Andorran courts served

their sentences in French or Spanish prisons dated back to the

Middle Ages. It had continued without interruption since then, and

until the present case had never been challenged. It was indeed of

a bilateral and local character, and admittedly linked a State with

an entity which did not have legal personality in international law,

but it nevertheless constituted a compulsory rule which created

reciprocal rights and obligations.

As for French law, it included a law, no. 84-1150 of

21 December 1984, on the transfer to France of persons convicted and

imprisoned abroad, and this law had inserted into the Code of

Criminal Procedure the new Articles 713-1 to 713-8. Although the

only hypothesis mentioned was an "international convention or

agreement", it also applied in the case of a custom. It was fleshed

out by instructions to prison establishments issued by the Minister

of Justice.

Andorran law for its part included a relevant provision,

Article 234 of the Code of Criminal Procedure, which had replaced

Article 112 of the decree on criminal procedure of 10 April 1976,

which had been applicable at the time of the applicants' trial. It

offered a convicted person the choice of country (France or Spain)

in which to serve his sentence if it exceeded three months'


107.For reasons similar to those set out in paragraphs 89 and 96

above, the Court considers that it does not have jurisdiction to

review the observance of Andorran legal procedures, or more

generally to review the lawfulness of the applicants' deprivation of

liberty in terms of the laws of the Principality. It merely notes

that the Tribunal de Corts followed the procedure laid down by

Andorran law, not by the French Code of Criminal Procedure, passed

sentences provided for in Andorran legislation and not in the French

Criminal Code, and pronounced a judgment which could not be appealed

against before the French Court of Cassation.

As for compliance with French law, the Court considers this

to have been shown. The Franco-Andorran custom referred to above,

dating back several centuries, has sufficient stability and legal

force to serve as a basis for the detention in issue,

notwithstanding the particular status of the Principality in

international law. Moreover, there is no reason to doubt that the

said detention was in accordance with the procedures prescribed by

French law, especially as the applicants did not challenge before

the French courts the validity of the custom in question and the

corresponding provisions of French law.

2. The necessity of a control by the French courts of

the conviction in issue

108.The applicants claimed that their detention was also

contrary to French public policy (ordre public), of which the

Convention formed part; the French courts had not carried out any

review of the judgments of an Andorran court whose composition and

procedure had not complied with the requirements of Article 6

(art. 6).

109.The Government argued that a distinction should be drawn

between the lawfulness of detention under Article 5 para. 1

(art. 5-1) and the lawfulness of the conviction from the point of

view of Article 6 (art. 6); the former could be assessed only by

reference to the internal law of the country of detention. If the

authorities of that country were obliged to assure themselves of the

latter, in the case of a trial which had taken place abroad, the

result would be to make the transfer of prisoners extremely

difficult, or even impossible. It would also have a paradoxical

effect, in that, as it would not be possible to retry the defendant

in the receiving country, it would have to be left to the country

which had been found responsible for breaching the Convention to

enforce the sentence itself. Besides, the Principality would itself

have to accommodate the prisoners who are now in France and Spain,

and would thus have to provide itself with the appropriate

institutions and personnel.

In any event, the French Code of Criminal Procedure did

provide for an administrative and - to a certain extent - judicial

review of the transfer. This safeguard was more than a mere

formality, since if the sentence imposed abroad was more severe in

its nature or extent than that provided for in French law, the

criminal court would, if the matter were referred to it by the

public prosecutor or the convicted person, substitute the

corresponding penalty in French law.

Furthermore, the French authorities could refuse a transfer

in the case of a serious and flagrant breach of French ordre public

or of the fundamental rights of the defence, such as to deprive the

judgment of legal validity.

110.The Court, like the Commission, considers that in this case

the Tribunal de Corts, which pronounced the conviction of Mr Drozd

and Mr Janousek, is the "competent court" referred to in

Article 5 para. 1 (a) (art. 5-1-a). As the Convention does not

require the Contracting Parties to impose its standards on third

States or territories, France was not obliged to verify whether the

proceedings which resulted in the conviction were compatible with

all the requirements of Article 6 (art. 6) of the Convention. To

require such a review of the manner in which a court not bound by

the Convention had applied the principles enshrined in Article 6

(art. 6) would also thwart the current trend towards strengthening

international cooperation in the administration of justice, a trend

which is in principle in the interests of the persons concerned.

The Contracting States are, however, obliged to refuse their

co-operation if it emerges that the conviction is the result of a

flagrant denial of justice (see, mutatis mutandis, the Soering v.

the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 45,

para. 113).

The Court takes note of the declaration made by the French

Government to the effect that they could and in fact would refuse

their customary co-operation if it was a question of enforcing an

Andorran judgment which was manifestly contrary to the provisions of

Article 6 (art. 6) or the principles embodied therein. It finds

confirmation of this assurance in the decisions of some French

courts: certain indictments divisions refuse to allow extradition of

a person who has been convicted in his absence in a country where it

is not possible for him to be retried on surrendering to justice

(see, for example, the decision of the Limoges Court of Appeal,

15 May 1979, cited in the Bozano v. France judgment of

18 December 1986, Series A no. 111, p. 10, para. 18), and the

Conseil d'Etat has declared the extradition of persons liable to the

death penalty on the territory of the requesting State to be

incompatible with French public policy (see, for instance, the Fidan

judgment of 27 February 1987, with submissions by Government

Commissioner Jean-Claude Bonichot, Recueil Dalloz Sirey 1987,

jurisprudence, pp. 305-310, and the Gacem judgment of

14 December 1987, Recueil Lebon 1987, tables, p. 733).

In the Court's opinion, it has not been shown that in the

circumstances of the case France was required to refuse its

co-operation in enforcing the sentences.

3. Conclusion

111. In short, no violation of Article 5 para. 1 (art. 5-1) has

been established.


1. Holds unanimously that it does not have jurisdiction to

examine the merits of the case from the point of view of

Article 6 (art. 6);

2. Holds unanimously that it has jurisdiction to examine the

preliminary objection of failure to exhaust domestic

remedies raised by the French Government with respect to the

complaint relating to Article 5 para. 1 (art. 5-1);

3. Dismisses unanimously the said objection;

4. Holds by twelve votes to eleven that there has not been a

violation of Article 5 para. 1 (art. 5-1).

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 26 June 1992.

Signed: Rolv RYSSDAL


Signed: Marc-André EISSEN


In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of the Rules of Court, the following

separate opinions are annexed to this judgment:

(a) partly dissenting opinion of Mr Cremona;

(b) concurring opinion of Mr Matscher;

(c) joint dissenting opinon of Mr Pettiti, Mr Valticos and

Mr Lopes Rocha, approved by Mr Walsh and Mr Spielmann;

(d) joint dissenting opinion of Mr Macdonald, Mr Bernhardt,

Mr Pekkanen and Mr Wildhaber;

(e) dissenting opinion of Mr Russo.

Initialled: R.R.

Initialled: M.-A.E


Whilst agreeing with my colleagues on the Article 6 (art. 6)

issue, I am afraid I cannot do the same with regard to that

concerning Article 5 para. 1 (art. 5-1).

In a nutshell, I cannot accept that France, on whose

territory the applicants were in fact detained (in pursuance of a

centuries-old Franco-Andorran custom which, like the majority, I am

prepared to consider a sufficient legal basis), can be justified in

not exercising the minimum degree of control reasonable in the

circumstances in respect of the Andorran conviction's compatibility

with the Convention for the purposes of the lawfulness of the

detention itself.

Indeed in the instant case it was not a question of

ascertaining whether, for instance, a particular judge had been or

had not been qualified to sit on the sentencing court, which in

general for the receiving State is hardly practicable. The

essential point here is that, because of its very close and special

links with the Andorran judicial machine, France knew full well the

organic composition of the sentencing court (actually comprising in

this case a joint head of the police), which clearly tainted its

independence and impartiality (see paragraphs 16 and 38). Indeed

after this case the said joint head of the police stopped sitting on

the court.

The importance of the last-mentioned principle (court's

independence and impartiality) hardly needs stressing.



Although I entirely agree with the Court's conclusions with

reference to section II B 2 of the "As to the law" part of the

judgment, I consider that they should be based on different


I concede to begin with that the applicants pleaded this

aspect of their complaint from the point of view of Article 5

(art. 5). But the Court is free as regards the characterisation in

law of the facts in issue, and is not bound by the characterisation

put forward by those appearing before it.

The applicants considered firstly that their detention in

France was unlawful because of the lack of a sufficient legal basis

in French law.

That the applicants' detention in France was lawful within

the meaning of Article 5 para. 1 (a) (art. 5-1-a) has been stated in

section II B 1, with cogent reasons being given, and I have nothing

to add to this.

The applicants also considered that there had been a

violation of their rights under the Convention in that they were

serving a sentence of imprisonment in a French penal establishment

following a conviction pronounced by an Andorran court, a conviction

which in their opinion had been obtained as a result of proceedings

contrary to Article 6 (art. 6) of the Convention; consequently, by

enforcing that judgment in the form of imprisonment without carrying

out any review of its compatibility with the requirements of the

Convention, France had been guilty of a violation of the Convention.

On this point also they relied on Article 5 (art. 5).

The Court rightly concluded that there had been no violation

of the Convention. But in my opinion what is in issue here is not

Article 5 para. 1 (a) (art. 5-1-a), which requires only the

lawfulness of the detention after conviction by a competent court (a

condition which was satisfied) and not the lawfulness of the

conviction, which is a question of Article 6 (art. 6) (which is not

directly applicable in the present case, as was rightly stated in

section I of the "As to the law" part of the judgment).

According to the Court's case-law, certain provisions of the

Convention do have what one might call an indirect effect, even

where they are not directly applicable. Thus, for example, a State

may violate Articles 3 and/or 6 (art. 3, art. 6) of the Convention

by ordering a person to be extradited or deported to a country,

whether or not a member State of the Convention, where he runs a

real risk of suffering treatment contrary to those provisions of the

Convention (Soering v. the United Kingdom judgment of 7 July 1989,

Series A no. 161); other hypothetical cases of an indirect effect of

certain provisions of the Convention are also quite conceivable.

The same argument applies in reverse, so to speak; a

contracting State may incur responsibility by reason of assisting in

the enforcement of a foreign judgment, originating from a

contracting or a non-contracting State, which has been obtained in

conditions which constitute a breach of Article 6 (art. 6), whether

it is a civil or criminal judgment, and in the latter case whether

it imposes a fine or a sentence of imprisonment.

This must clearly be a flagrant breach of Article 6 (art. 6)

or, to put it differently, Article 6 (art. 6) has in its indirect

applicability only a reduced effect, less than that which it would

have if directly applicable (the theory of the "reduced effect" of

ordre public with reference to the recognition of foreign judgments

or other public acts is well known to international law).

There is no need here to develop general rules on the extent

of the indirect effect of Article 6 (art. 6); in any event, in

establishing the factors to be taken into consideration, the

seriousness of the conviction and sentence pronounced abroad also

plays a part.

To see whether the enforcement of a foreign judgment will

clash with this indirect effect of Article 6 (art. 6), the requested

State must, to be sure, carry out a review of some kind. Such a

review is provided for in all legislative systems, the thoroughness

of the review and the conditions of its exercise being left to the

legislation of the requested State; it merely has to comply with the

requirements of the Convention.

In the present case, by enforcing the judgment of the

Andorran court - even though it would have been unlawful under

Article 6 (art. 6) if that provision had been directly applicable -

France acted in a manner in conformity with the Convention, as the

unlawfulness in question was not of such a nature as to incur that

State's international responsibility in this respect.

In the contrary case, there would not be a violation of

Article 5 (art. 5) but of Article 6 (art. 6) with respect to its

indirect application. This is confirmed by the fact that the

situation would be analogous if it was a case of the enforcement of

a fine or a civil judgment, where Article 5 (art. 5) is clearly of

no relevance.

A final argument in support of the thesis put forward in

this concurring opinion: in domestic law too, that is to say, where

there is no "international" factor, imprisonment following a

conviction obtained under circumstances contrary to Article 6

(art. 6) would not as a general rule constitute a violation of

Article 5 (art. 5); it would only be Article 6 (art. 6) which had

been violated.





We regret that we are unable to share the opinion of the

majority of the Court with respect to Article 5 (art. 5) of the


With reference to Article 6 (art. 6), it is by an

essentially formal argument that the conclusion has been reached

that the Convention is not applicable in Andorra. Thus it is not

applicable in Andorra as such since the "Principality" is not - or

at least not fully - an international entity and in any case has not

acceded to the Convention. Nor has France or Spain, who have

ratified the Convention, declared it to be applicable in Andorra

under Article 63 (art. 63), and indeed a declaration under that

Article could not have been made with respect to Andorra, as Andorra

is not strictly speaking a territory for whose international

relations France or Spain is responsible.

This argument is unsatisfactory, however, as it would lead

to the conclusion that not only is the Convention not applicable in

Andorra, but also that it could not be applicable, as long as

Andorra did not have legal personality in international law and

remained, as the representative of the Spanish Government has said,

a de facto regime, despite having become a party to certain

international agreements.

How far can the President of the French Republic disregard

France's international obligations with respect to human rights when

he acts as Co-Prince of Andorra? How far can the Prefect of the

Pyrénées-Orientales department do so when acting in his capacity as

French Permanent Delegate in Andorra? Or the French judges who have

been appointed by the Co-Prince or the veguer as "Andorran" judges

and have temporarily received Andorran nationality by virtue of

their office? Or the French gendarmes serving in Andorra? And the

same questions, mutatis mutandis, could be asked with respect to the

Andorran officials of Spanish nationality. The vacillation in

French case-law as regards the status of Andorra from the point of

view of France (see Charles Rousseau, Droit international public,

volume II, Paris, 1974, pp. 345-346) is significant in this respect.

Can one carry to extremes the argument that France and Spain play no

part and hence have no international obligation as a result of the

part played by their officers in the administration of Andorra? Can

one accept that because the Convention has been ratified by France

and Spain, human rights must be respected on both sides of the

Pyrenees, but not in a small piece of land in the Pyrenees, despite

the responsibilities these two countries exercise there, and despite

the fact that this little territory would thus not be subject to the

rules of international human rights law?

It seems difficult to accept that there is a watertight

partition between the entity of Andorra and the States to which the

two Co-Princes belong, when in so many respects (enforcement of

sentences being a further example) those States participate in its


It must thus be considered that the Co-Princes should even

now use their authority and influence in order to give effect in

Andorra to the fundamental principles of the European Convention on

Human Rights, which has the force of law or even overrides national

law in their own countries, and more generally is a basic element of

the rule of law in Europe.

With reference to Article 5 (art. 5), as the case concerns a

fact (a long term of imprisonment) which must take place in France,

the Convention is certainly applicable. And it would be contrary to

the Convention for a country which was bound by it to agree to

deprive a person of his liberty where he had been convicted in

another country under conditions which did not appear to be

compatible with the Convention.

The French Co-Prince has moreover declared, in a passage

quoted by the Agent of the Government, that the rule of law must be

introduced in Andorra.

Although the member States of the Council of Europe claimed

to hold out their system as a model for the countries of Eastern

Europe, they would still be unable, despite the preamble to the

Treaty and despite their joint commitment, to ensure respect for

human rights in a small parcel of land, an area "outside the law",

even though one of the Co-Princes was an authority of a member


France cannot at one and the same time refer to the

bilateral customary law which has come into being for Andorra,

decline to recognise an Andorran "State", and refuse to allow

persons detained guarantees similar to those of the European

Convention on the International Validity of Criminal Judgments and

the Convention on the Transfer of Sentenced Persons, on the pretext

that these conventions cannot be relied on against Andorra.

The French Co-Prince could intervene to alter the custom

which he has jointly inherited and for which he is jointly


Indeed, the explanatory report on the European Convention on

the International Validity of Criminal Judgments contains the

following statement:

"[A condition for enforcement of a foreign judgment is that]

the decision must have been rendered in full observation of

the fundamental principles of the Convention on Human

Rights, notably Article 6 (art. 6), which lays down certain

minimum requirements for court proceedings. Though it is

not expressly stated in the text there was complete

agreement that it was unthinkable to acknowledge the outcome

of a trial as a valid judgment if it fell short of basic

democratic requirements." (Council of Europe, Strasbourg

1970, p. 15)

The principle expressed in the passage cited retains its

full validity in the Convention on the Transfer of Sentenced Persons

of 21 March 1983.

Nor can it be objected that France has not signed that

convention, as France has signed and ratified the Transfer

Convention, which follows the same principles and is moreover

intended to supplement, not to amend the Validity Convention.

The principle of good faith in international relations

should induce France to comply with the obligations contained in

both conventions.

The two States refuse to recognise Andorra as a sovereign

State, and this means that foreigners convicted in Andorra are

deprived of the guarantees provided for in the Convention on the

Transfer of Sentenced Persons and the Convention on the

International Validity of Criminal Judgments. It would simply be a

matter for those two States, acting through the Co-Princes and

veguers, to change the custom in the right direction.

Under Article 1 (art. 1) of the European Convention on Human

Rights, France and Spain undertake to secure to everyone within

their jurisdiction the rights and freedoms defined in the


The system of enforcement of sentences is an integral part

of the criminal procedure and the judgment is subject to the same

principles of criminal procedure (see the Weeks v. the United

Kingdom(1) and Van Droogenbroeck v. Belgium(2) judgments). Mr Drozd

and Mr Janousek were therefore subject to the "jurisdiction" of

France for Convention purposes.


(1) Judgment of 27 March 1987, Series A no. 114.

(2) Judgment of 24 June 1982, Series A no. 50.


Article 5 (art. 5) has been relied on in its entirety by the

applicants. It should therefore also be examined with respect to

the system of enforcement of sentences.

The acceptance by the two States of the enforcement of

sentences on their territory implies a responsibility on their part,

which cannot be avoided on the pretext that the Co-Princes act in a

personal capacity.

As Mr Frowein rightly observed in his dissenting opinion:

"France's responsibility could nevertheless be excluded if

France had no real power to guarantee observance of the

rights set out in the Convention (no. 6231/73, Ilse Hess v.

the United Kingdom, decision of 28 May 1975, DR 2,

pp. 72- 75). As its competence to legislate and its

appointment of judges show, France does have the power to

ensure that the Convention is respected."

Foreigners who have been convicted by a criminal court in

Andorra and serve their sentences in France are treated in a way

which has certain discriminatory aspects:

1. Such foreigners cannot benefit from a pardon, which can be

granted to persons who have been convicted in France.

2. They cannot benefit from release on licence under the same

conditions as other prisoners. In their case, such a measure has to

be approved by the Andorran authorities after they have been duly

consulted. In the absence of a bilateral or trilateral convention

and in the absence of defined criteria, there is no equality of


3. Under Article D.505 of the Code of Criminal Procedure,

prisoners of foreign nationality are in theory subject to the same

rules as those of French nationality, apart from release on licence.

Under Article 713.3 a sentence pronounced abroad is directly

enforceable, but only by virtue of a multilateral convention or


The following comment by Mr Frowein in his dissenting

opinion may be noted, by way of analogy:

"... since Andorra is not an independent State but an entity

under the jurisdiction of the two Co-Princes, we consider

that Spain has a duty under the Convention to ensure that

the Spanish Co-Prince exercises his authority in a way

compatible with the Convention (see no. 13258/87, M. and Co.

v.Germany, decision of 9.2.90, due to appear in DR)."

Every State has the duty and the positive obligation to

ensure that persons detained on its territory are treated in a way

which is not discriminatory. The Court's case-law in favour of

prisoners' rights is consistent (c.f. the cases of Silver and Others

v. the United Kingdom(1), Campbell v. the United Kingdom(2), etc.).

The applicants are in a category of persons detained who are

discriminated against in comparison to those detained as a result of

convictions pronounced by French courts.


(1) Judgment of 25 March 1983, Series A no. 61.

(2) Judgment of 25 March 1992, Series A no. 233.


Finally, a finding of a violation would not entail the

prisoners' release, but merely their return to Andorra. The Co-

Princes and veguers would have to use their influence so that appeal

proceedings would be possible and the composition of the Andorran

courts would be altered in future.

For the above reasons we consider that there has been a

violation of Article 5 (art. 5) of the European Convention on Human

Rights by France.



We share the opinion of the majority that neither France nor

Spain can be made responsible, under the European Convention on

Human Rights, for the condemnation of the applicants by the Andorran

court. It is to be regretted that the Convention is not applicable

in the territory of Andorra, and that the organs of that entity are

not bound by it, but, for the reasons explained in the judgment,

this lacuna cannot be eliminated by making the two States

responsible, solely on the basis that the Co-Princes are closely

connected with these countries.

We also agree with the majority that the practice to execute

Andorra prison sentences in France or Spain has an adequate legal

basis founded on long-standing custom.

As soon as the applicants entered France and were subjected

to organs of this State, they came under the protection of the

Convention including Article 5 (art. 5). This does not mean that

France (or Spain) cannot execute prison sentences promulgated by

courts of third countries or entities, nor does this mean that such

sentences can only be executed if such foreign courts have acted

entirely in conformity with the provisions of the Convention which

is not binding for them. But there must be some effective control

that the foreign court has respected those guarantees which must be

considered fundamental under the European Convention. The

independence of the judiciary and of the judges belong to these

fundamental guarantees. Such a control is of special importance

when prison sentences deprive a person of his freedom for long

periods - up to fourteen years in the present case. France has not

executed such a control, nor has it taken due account of the

composition of the Andorran court which is hardly compatible with

basic principles of the European Convention.



I am convinced that there was a violation of Article 5

(art. 5) of the Convention in this case. I reach this conclusion by

subscribing to the second part of the dissenting opinion written by

Mr Pettiti, Mr Valticos and Mr Lopes Rocha and approved by Mr Walsh

and Mr Spielmann, starting with the words "With reference to

Article 5 (art. 5) ... ".