JOINT DISSENTING OPINION OF JUDGES PETTITI, VALTICOS AND LOPES ROCHA, APPROVED BY JUDGES WALSH AND SPIELMANN

(Translation)

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 Convention.

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 administration.

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 State.

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 responsible.

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 Convention.

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.

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 treatment.

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 agreement.

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 [2] , C ampbell v. the United Kingdom [3] , 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.

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 .