PARTLY DISSENTING OPINION OF JUDGE CREMONA

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.

CONCURRING OPINION OF JUDGE MATSCHER

(Translation)

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 reasoning.

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.