JOINT DISSENTING OPINION OF JUDGES MACDONALD, BERNHARDT, PEKKANEN AND WILDHABER

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.

DISSENTING OPINION OF JUDGE RUSSO

(Translation)

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) ... ".

[*]  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.

[*]  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.

[1] Judgment of 27 March 1987 , Series A no. 114. (2) Judgment of 24 June 1982 , Series A no. 50.

[2] Judgment of 25 March 1983 , Series A no. 61.

[3] Judgment of 25 March 1992 , Series A no. 233.