ITEMID: 001-57774
LANGUAGEISOCODE: ENG
RESPONDENT: ESP;FRA
BRANCH: CHAMBER
DATE: 1992
DOCNAME: CASE OF DROZD AND JANOUSEK v. FRANCE AND SPAIN
IMPORTANCE: 2
CONCLUSION: Preliminary objection allowed (incompetence);Preliminary objection rejected (non-exhaustion);No violation of Art. 5-1
JUDGES: C. Russo;J.A. Carrillo Salcedo;John Freeland;N. Valticos;R. Pekkanen
TEXT: 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).
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.
13. There are a number of facts which are not in dispute between the respondent Governments and the applicants.
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 place.
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.
21. The respondent Governments and the applicants submitted differing versions of certain facts.
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.
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.
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.
28. Mr Janousek claimed that he had not had the benefit of the assistance of an interpreter during the investigative stage; the interprÉtation 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.
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 right.
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).
34. Andorra is ruled by two Co-Princes, the President of the French Republic and the Bishop of Urgel (province of Lleida/Lerida, Spain).
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.
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.
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.
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).
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).
41. The Principality also has a number of institutions whose members are elected by universal suffrage.
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 decisions.
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.
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.
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".
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.
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.
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.
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.
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 Appeals.
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."
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.
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.
57. If a convicted person chooses France, as in the present case, enforcement of the sentence is governed by the provisions of the French Code of Criminal Procedure (circular of the Minister of Justice of 8 February 1983). Like any person convicted in a foreign country and transferred to France, he is entitled (according to the Government) to remission of sentence, prison leave and semi-imprisonment in the same way and subject to the same conditions as prisoners sentenced by a French court (Article D.505 of the Code of Criminal Procedure).
58. The judge responsible for the enforcement of sentences has sole jurisdiction to decide whether to grant the prisoner release on licence or to remit part of his sentence, within the legal limits.
If the term of imprisonment exceeds three years, it is for the Minister of Justice to grant release on licence. The Minister must first obtain the consent of the Tribunal de Corts (Article 253 of the Andorran Code of Criminal Procedure).
59. Under Article 710 of the French Code of Criminal Procedure, disputes relating to the enforcement of sentences are brought before the court which pronounced the sentence, in this case the Andorran court.
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.
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".
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.
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.
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.
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.
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.
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.
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).
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.
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.
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 Élysée 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 Co-Prince.
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 Convention.
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))
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-85902
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: HAKIZIMANA v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: The applicant, Mr Jean M. V. Hakizimana, is a Rwandan national who was born in 1973 and is currently living in Sweden. He was represented before the Court by Mr P. Bergquist, a lawyer practising in Huddinge.
The Swedish Government (“the Government”) were represented by their Agent, Mr C. H. Ehrenkrona, of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 2 December 2002 the applicant applied to the Migration Board (Migrationsverket) for asylum and a residence permit and, on the same day, an initial interview was held with him. The applicant claimed that he had arrived in Sweden that same day and he submitted his Rwandan identity card. However, he did not present a passport or any travel documents. He stated that he was an ethnic Hutu and had been persecuted by the Tutsis. Between 6 and 29 November 2002, he had been imprisoned in his home town, Gatore, and had been tortured. On the day of his escape from prison, he had been taken by car to Kampala airport and had left the country by plane the following day, via Nairobi and with a second stop-over at a place unknown to him.
In the context of a comprehensive asylum investigation, the applicant appeared before the Migration Board on 10 June 2004 in the presence of his legal counsel and stated, in particular, as follows. He came from Gatore, a town in the municipality of Rusumo, in the province of Kibungo. In 1994, because of the civil war, he and his family had fled to Tanzania, where they had lived in a refugee camp and he had worked as a teacher. Upon his return to Rwanda, in 1996, he had received an identity card and had worked for the United Nations World Food Programme. However, he claimed that he had been insulted and then dismissed because of his Hutu ethnicity. Between 1998 and 2002 he had studied computer engineering at a university in Madras, in India, as a United Nations scholarship holder. His wife and two daughters had remained in Rwanda and when one of the daughters had fallen ill, he had returned. On 3 November 2002 he had arrived at the airport in Rwanda where he had had to fill in an “entry form” and then his passport had been taken away from him by a man in civilian clothes. He had been told to return to collect it when he needed it, but he believed that the passport had been taken in order to prevent him from leaving the country. Three days later, when he had gone to visit his parents in Rusumo, he had been arrested by a person working for the Local Defence Forces (hereafter “the LDF”). He had been taken to a secret prison in the countryside where, almost daily, he had been insulted and hit with sticks and he had not been given anything to eat, apart from when his relatives brought him food. However, he had never been interrogated and had managed to escape after his family had bribed a guard. He had subsequently fled to Uganda, via Gatona, by hiding in a pick-up truck. Relatives in Uganda had arranged for him to travel to Sweden since he had not dared to stay in Uganda because of the presence there of high-ranking military persons of Rwandan nationality.
Moreover, the applicant stated that he had never been politically active but that the Rwandan authorities probably thought that a Hutu coming back from India could be capable of influencing other Hutus. He had thus been called to gacaca trials (see below under “relevant background material”), as had many others who had been to school. His father had also, several times, been summoned to the police station to be questioned about the applicant’s whereabouts and his brother-in-law had fled to Malawi. His brothers and sisters had been forced to leave Rwanda as well.
In a written submission to the Migration Board, the applicant, who had been given the opportunity to comment on the investigation, made certain clarifications and additions. However, he first complained that he had spent more than six hours on a train to get to the meeting with the Board and for this reason he had been tired and unable to prepare himself sufficiently for the interview. He then stated that the prison to which he had been taken had in fact been a normal house, belonging to a businessman. Moreover, he had been arrested when he had got off a bus to visit his brother, who since 1996 had been held in the local “Prison Central”. He had never been informed of the reason for his arrest but he had been ill-treated and threatened and had also seen other persons who had been tortured and had died from their injuries. The applicant further added that, while in Tanzania, he had married his wife and their first child had been born there. In 1996 they, together with all other Hutus in the country, had been forced by the Tanzanian military to return to Rwanda. However, he claimed that they had been too afraid to settle in their home town since his family’s property had been confiscated by the authorities and they had therefore settled in the county town of Kibungo. He had nevertheless made a claim to the mayor of the municipality of Rusumo to have the family’s property returned. The applicant alleged that the mayor had understood the demand to mean that he was against the regime and had issued an order for his arrest. Although the mayor had left office in 1997, the applicant had remained afraid of returning because of the arrest order. Furthermore, the fact that he was a Hutu and well-educated had increased the risk of his being considered as a danger to the regime and arrested. This was particularly so because he had openly expressed his discontent with the Rwandan regime while he had been in India and he was convinced that two other Rwandan students there had been informers of the regime and had reported him to the Rwandan Embassy in New Delhi. The applicant further submitted that he had been in contact with one of his brothers who had recently fled to Uganda and had reported that their father had been battered and interrogated about the applicant’s whereabouts by the same persons who had arrested him. Thus, if forced to return to Rwanda, the applicant was convinced that he would be killed, seriously ill-treated or persecuted because he was a Hutu with higher education who had demanded to have his family’s property returned and who had escaped from a local prison. He was afraid of being sentenced by the gacaca courts. Although their task was to consider charges against people suspected of genocide, he was certain that they also convicted innocent persons whom the Government suspected of being a threat to security or of belonging to the opposition.
On 14 July 2004 the Migration Board rejected the application. It first noted that the Special Representative of the European Union in the Great Lakes Region had reported that conditions in the region had developed in a positive way. Freedom of expression and political rights were respected to a larger extent and the death squads in the eastern part of the Democratic Republic of Congo were no longer considered a threat to the internal security of Rwanda. Moreover, because it was still commonplace for people in Rwanda to be accused of having taken part in the genocide, whether they actually had or not, the Government had created the gacaca courts, a community-based justice system. On the basis of this, the Board found that the general conditions in Rwanda were not such as to grant a right to asylum. Turning to the applicant’s personal circumstances, the Board observed that he had not been politically active and therefore considered that it was unlikely that the Rwandan authorities would suspect him of being a security risk or of working against them. If the Rwandan embassy in India had had such suspicions, he would probably have been arrested already upon his arrival at Kigali airport. In view of this, it considered that the fact that his passport had been taken from him at the airport did not raise an issue. Turning to the applicant’s arrest, the Board found that he had probably been arrested because the LDF wanted to make money, since he had neither been interrogated nor accused of any offence. It further considered that the applicant’s allegations that the mayor of Rusumo had ordered his arrest because he had demanded to have his family’s property returned, were not credible as he had added it at a late stage of the proceedings. In any event, the Board was of the opinion that it was not probable that his arrest in 2002 was connected to the mayor’s arrest order in 1996. If such an order had been issued, it was remarkable that he had not been arrested earlier, since he had not been in hiding but had been working and moving freely before travelling to India. Moreover, as regards the applicant’s fear that he would be convicted by the gacaca courts, the Board noted that there were no reports about these courts sentencing innocent people only because the regime suspected them of being a security risk or of belonging to the opposition. However, even if there were such a risk, the Board considered that the applicant would not face a real risk of being convicted by the gacaca courts since he was not a security risk or politically active against the regime. Lastly, having regard to the fact that he had been living in Rwanda between 1996 and 1998 without having any problems and that the Rwandan Government was working very hard to prevent harassment attributable to the genocide, the Board concluded that the applicant would not risk persecution upon his return to Rwanda. The Board thus concluded that the applicant could neither be granted asylum in Sweden nor granted leave to remain on humanitarian grounds.
The applicant appealed against the decision to the Aliens Appeals Board (Utlänningsnämnden), maintaining his claims and adducing, inter alia, the following clarifications and additional comments. When he was arrested on 6 November 2002, the arrest had been made in his home town by a person belonging to the LDF and who knew that he was Hutu and had a higher education. Moreover, his family had bribed a prison guard (i.e. not a member of the LDF) to release him. It was therefore probable that the LDF were still looking for him and that they had beaten his father as revenge and also threatened his brother and sister so that they had felt forced to flee to Uganda. Those two siblings had been registered as refugees by the UNHCR in Uganda. In this respect, the applicant also claimed that another brother of his had recently died following ten years’ imprisonment only because of his Hutu ethnicity. A document was submitted in support of the alleged death. The applicant further alleged that everyone had to carry an identity card in Rwanda, especially Hutus, as otherwise they would be considered to belong to a rebel group or an opposition party. Furthermore, as regards his passport, he had obtained it through payment of bribes and, since he was not in the RUHARWA’s register (the register containing the names of persons suspected of having participated in the genocide), his name was not on any lists at airports or embassies and he had therefore been able to travel to India.
The applicant stated that torture still occurred in Rwanda and that, during his imprisonment, he had been tortured as had many others, some of whom had died from their injuries. He gave the names of several of these persons. He was certain that his arrest had been motivated solely by his ethnicity. Moreover, in June 2004, his father had been very severely battered by the police and had had to be hospitalised. He had not been able to report what had happened since the police, the prosecutors and the members of the judiciary were all Tutsis. In the applicant’s view, although the Tutsis made up only 14% of the population, they were governing the country and seeking to “tutsify” it. He further questioned the sources referred to by the Migration Board, alleging that the elections in Rwanda in 2003 had not been fair and that the country was not at all safe for Hutus. The gacaca courts did not reunify the people but only created more conflicts. He invoked various reports in support of the general, poor human rights situation in Rwanda. He was convinced that he would be arrested upon return to his home country and the fact that he had applied for asylum abroad increased this risk even further.
On 29 September 2005 the Aliens Appeals Board rejected the appeal, subscribing to the reasons given by the Migration Board. It also added, inter alia, that the applicant could not be considered to have been the victim of State-sanctioned persecution in Rwanda because of his ethnicity, noting that he had been able to live in Rwanda for two years prior to his journey to India and that he had been able to return to his home country without being arrested. The Board further found it improbable that the Rwandan authorities would have a special interest in him only because he had applied for asylum in Sweden. In the Board’Sweden and could not be granted leave to remain on humanitarian grounds. He was ordered to leave the country within two weeks from the date of the decision.
On 20 October 2005 the applicant requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court a suspension of his deportation to Rwanda. He alleged that he would face a real risk of being imprisoned, tortured and possibly even killed if forced to return to his home country. Moreover, he submitted two letters. The first one, dated 27 February 2005, was from the coordinator of the Refugee Sponsorship Program of the Diocese of Thunder Bay, Canada, and stated that the Diocese was willing to offer him support to resettle in Canada, provided that his case was formally referred to them by the UNHCR. The second letter, dated 4 October 2005, was from the Religious of Jesus-Mary, Montreal, Canada, and stated that they promised to provide the applicant with sponsorship as a priority for the beginning of October 2005. They had an agreement with the Government of Quebec which permitted them to sign commitments under which they retained responsibility for refugees during their first year in Canada.
On 24 October 2005 the Court decided to apply Rule 39 and to suspend the deportation until the applicant had received an answer concerning the possibilities for him to go to Canada. On the following day, the Migration Board stayed the deportation of the applicant until further notice. The Migration Board’s decision is still in force.
On 5 January 2006 the Court adjourned the case at the request of the Swedish Government following the enactment of an interim amendment to the Swedish Aliens Act, on the basis of which the applicant’s case would be reviewed.
On 14 June 2006, after having received several submissions from the applicant, the Migration Board decided not to grant him a residence permit in Sweden on the basis of the interim amendment to the Aliens Act. The Board concluded that the applicant was not in need of protection in Sweden and that there were no other grounds on which to grant him leave to remain in the country.
By letters of 20 June 2006 and 11 September 2006, the Court requested the applicant to inform it whether he had obtained permission to go to Canada.
In a reply which arrived to the Court on 9 October 2006, the applicant stated that he would inform the Court about the outcome of the Canadian proceedings within two months.
The applicant then made a new request to the Migration Board for a residence permit in Sweden or, in the alternative, a student visa for one year. He claimed that, if he was allowed to remain one year in Sweden to study, it would heal him mentally and he could then return to live and work in Africa.
On 20 November 2006 the Migration Board rejected the request as it considered that these were no new circumstances which could constitute an impediment to the enforcement of the deportation in accordance with the Aliens Act.
Subsequently, the applicant submitted several “testimonies” and letters from named Rwandans in confirmation of the poor human rights situation in the country, in particular for Hutus and intellectuals. One of the persons stated that he had been asked to falsely accuse the applicant of having assaulted him and another person and alleged that the applicant had been summoned by the police on 13 December 2005. This person affirmed that he had been instructed to accuse all former teachers in Rwanda of having taught “ethnism” and “divisionism”. Furthermore, two persons testified that they had spent time with the applicant in prison, that they had been battered and that many people had died from the ill-treatment. Another two persons claimed that they had been asked, but had refused, to give false testimony against the applicant by stating that he had taken part in the genocide. However, they alleged that many other people had given false testimonies and that, therefore, the applicant would risk being accused and convicted by the gacaca courts. One more person, who was a Rwandan asylum-seeker in France, stated that, in May 2004, he had heard people mentioning that the applicant was on the Rwandan authorities’ list of people who were considered politically dangerous and who should be arrested. He also confirmed that the applicant had been detained without a trial.
The basic provisions, applied in the present case, concerning the right of aliens to enter and to remain in Sweden were laid down in the 1989 Aliens Act (Utlänningslagen, 1989:529 – hereinafter referred to as “the 1989 Act”). However, the 1989 Act was superseded on 31 March 2006 by a new Aliens Act (Utlänningslag, 2005:716 – hereinafter referred to as “the 2005 Act”). Both the 1989 and 2005 Acts define the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions.
Chapter 1, Section 4, of the 1989 Act provided that an alien staying in Sweden for more than three months should have a residence permit. Such a permit could be issued, inter alia, to an alien who, for humanitarian reasons, should be allowed to settle in Sweden (Chapter 2, Section 4). For example, serious physical or mental illness could, in exceptional cases, constitute humanitarian reasons for the grant of a residence permit if it was a life-threatening illness for which no treatment could be provided in the alien’s home country.
Further, under the 1989 Act, an alien who was considered to be a refugee or otherwise in need of protection was, with certain exceptions, entitled to residence in Sweden (Chapter 3, Section 4). The term “refugee” referred to an alien who was outside the country of his nationality owing to a well-founded fear of being persecuted for reasons of race, nationality, membership of a particular social group, or religious or political opinion, and who was unable or, owing to such fear, unwilling to avail himself or herself of the protection of that country. This applied irrespective of whether the persecution was at the hands of the authorities of the country or if those authorities could not be expected to offer protection against persecution by private individuals (Chapter 3, Section 2). By “an alien otherwise in need of protection” was meant, inter alia, a person who had left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 3, Section 3).
An alien who was to be refused entry, deported or expelled, in accordance with a decision that had gained legal force, could be granted a residence permit if he or she filed a new application based on circumstances which had not previously been examined, and if the alien was entitled to a residence permit under Chapter 3, Section 4, or if it would be contrary to the requirements of humanity to enforce such a decision (Chapter 2, Section 5 b). Regard could also be had to serious illness under this provision. Such new applications were filed with and examined by the Aliens Appeals Board (Chapter 7, Section 7).
As regards the enforcement of a refusal of entry, deportation or expulsion, account had to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien could not be sent to a country where there were reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 8, Section 1).
In essence, the 2005 Act did not substantially amend the above provisions, except for the following.
Under the 2005 Act, the Aliens Appeals Board has been replaced by the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3). Moreover, it is no longer possible to renew applications but, instead, the Migration Board determines, on its own initiative, whether there is any impediment to the deportation or expulsion (Chapter 12, Section 18).
Furthermore, on 15 November 2005 certain interim amendments to the 1989 Act entered into force, according to which the Migration Board, upon application by an alien or on its own initiative, could re-determine final decisions already taken by the Aliens Appeals Board. The object of these temporary amendments was to grant residence permits to aliens who, inter alia, had been in Sweden for a very long time or where there existed “urgent humanitarian interests” (humanitärt angeläget). Special consideration was given to the situation of children. The temporary provisions remained in force until the new Aliens Act entered into force on 31 March 2006. The Migration Board continued, however, to examine applications which it had received before that date but had not yet determined.
Rwanda is a constitutional Republic dominated by a strong presidency and with a population of 8.4 million (an estimated 88% Hutus, 11% Tutsis and 1% Twa pygmies). In April 1994, the Hutu-dominated national army and its armed youth militia (the Interahamwe), under the direction of the Hutu-dominated government, began a massacre directed primarily against the minority Tutsi ethnic group, but also against those from the Hutu majority who opposed the killing or had been active in the pro-democracy movement. The genocide, which left close to one million people dead, ended in July 1994 when the predominantly Tutsi Rwandan Patriotic Front (the RPF) overthrew the government and took power. It formed a government of National Unity that functioned until 2003 when, in largely peaceful but seriously marred elections, the RPF won the majority of the seats in the Chamber of Deputies and the Senate.
Prior to the genocide, all Rwandans were required to carry identity cards that indicated ethnicity, a practice that had been instituted during the Belgian colonial administration. Following the genocide, the government banned all identity card references to ethnic affiliation and called for national reconciliation. They also eliminated all references to ethnicity in written and non-written official discourse as well as ethnic quotas for education, training, or government employment. The constitution provides for the eradication of ethnic, regional, and other divisions and the promotion of national unity. While some organisations and individuals have continued to accuse the government of favouring Tutsis in government employment, admission to professional schooling, and other matters, the government have denied this charge and there is no evidence to suggest that the government practises ethnic favouritism.
The law prohibits “any propaganda of ethnic, regional, racial, or divisive character or based on any other form of divisionism”, and public incitement to “divisionism” is punishable by up to five years in prison, heavy fines, or both. Individuals can criticise the government publicly and privately on most topics but the law discourages citizens from expressing viewpoints unacceptable to the government on sensitive subjects, as such viewpoints sometimes result in imprisonment, harassment, or intimidation under the pretext of “divisionism”.
In 2006 Rwanda received some positive comment by a peer review team of the New Economic Partnership for Africa (NEPAD) but was criticized for restricting political space and not recognizing diversity.
There were reports that security forces had committed extrajudicial killings and torture, abused suspects with impunity and arbitrarily arrested and detained persons, including street children and members of other vulnerable groups. Local officials had briefly detained some individuals who disagreed publicly with government decisions or policies. Such individuals had not usually been charged and had been released after a day in detention. Furthermore, there were reports of secret detention centres being run by security officials where individuals were detained illegally, abused and deprived of food and water. The government and police denied this but, in 2006, the Senate opened an investigation into the matter.
Members of local communities chose community volunteers to serve in the Local Defence Forces (the LDF), a statutorily established law-enforcement organisation under the Ministry of Local Government that assisted police. The national police exercised tactical control of the LDF while locally appointed officials had responsibility for the operational oversight. LDF members performed basic security guard duties throughout the country, including maintaining a presence at gacaca trials, and they were ordinarily unpaid and received less training than the national police.
Police officers and LDF members allegedly committed several unlawful killings but the government investigated these killings and reports generally indicated that the LDF members accused of killings had been arrested and charged. In 2006 there were fewer reports of police officers abusing suspects at the time of arrest, and authorities dismissed or disciplined some police officers for excessive use of force.
The government took significant steps in 2006 to address human rights deficiencies and institute reforms, such as forming a unit in the National Police to investigate citizens’ reports of official abuse and corruption. Moreover, the judiciary has demonstrated increased independence in its growing willingness to rule against the executive branch, its release of some political prisoners, and in its use of the Judicial Council to conduct investigations into judicial corruption.
A traditional, community-based gacaca system of tribunals was established in 2002 to try people suspected of crimes during the 1994 genocide, in order to resolve the enormous caseload of such crimes (however, not the most serious, so-called “category I” crimes, which are still tried in the ordinary courts). The government’s stated goal for the gacaca system was to ensure that those who had participated in the genocide were brought to trial, furthering the ends of justice, ending impunity and promoting national unity. The gacaca law provides for reduced sentences including community service, for cooperation, and credit for time served.
After a pilot phase when approximately 700,000 individuals were identified for prosecution for having participated in the genocide, the gacaca courts began trials nationwide in July 2006. The trials have been public but there have been concerns about their fairness, among other things because of a perceived lack of impartiality and reports that defendants have not been given the opportunity to defend themselves. In addition, some courts have spent only a few hours hearing each case and poorly qualified, ill-trained and corrupt gacaca judges in certain districts have fuelled widespread distrust of the gacaca system. There have been reports of local gacaca officials and citizens abusing the process to pursue personal matters and settle grudges unrelated to the genocide, including making false accusations in order to acquire land. However, in some reported cases where judges had acted inappropriately, gacaca officials intervened and held that the procedure had been illegal. Moreover, “Lawyers without Borders” has offered training to gacaca judges. The establishment of section-level appeal courts has lagged behind, limiting the possibility of recourse for those who feel wrongly judged.
Many Rwandans have not trusted the gacaca courts and have either boycotted the sessions or have attended under duress. In 2006, when the trials began, some fled to neighbouring countries in fear of being prosecuted but most of them returned to Rwanda later the same year.
A variety of international NGOs and more than six domestic human rights groups have been operating in the country. One of these, LIPRODOHR, employed some of its 600 members to conduct field investigations into alleged abuses, published its findings and discussed them with government officials. It raised concerns about false accusations in gacaca trials.
In 2006, more than 17,000 asylum seekers returned to Rwanda from Burundi. There were no reports that these repatriates were mistreated upon their return. Also in 2006, Tanzania expelled more that 13,000 Rwandans. The Rwandan government worked with UNHCR and other aid organisations to assist the returnees, who were resettled, and government mediators handled land disputes resulting from the number of returnees.
It was reported that Rwandan nationals had not encountered any particular problems in obtaining identity cards or passports, either to leave the country or to return following exile. Corruption was not considered a problem for obtaining passports but it was expensive, thus creating an obstacle for many.
According to the UNHCR 2004 Guidelines on Rwandan asylum seekers, the mere assertion of having been deprived of property before or during exile, by itself, was not sufficient to establish a refugee claim. The Rwandan Government had undertaken to ensure the resolution of such cases, and some properties which had been taken by those who returned in 1994 had been restored to their rightful owners. However, persons who illegally took or seized other peoples’ properties in Rwanda are known to have falsely accused the rightful owners of involvement in the genocide when the latter have attempted to assert their property rights.


ITEMID: 001-84610
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: SHELLEY v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
TEXT: The applicant, a United Kingdom national, born in 1972, is currently serving a sentence of imprisonment in H.M. Prison Whitemoor. He was represented before the Court by Mr Sean Humber, a solicitor practising in London. The United Kingdom Government (“the Government”) are represented by their Agent, Mr J. Grainger of the Foreign and Commonwealth Office, London.
The facts of the case, as submitted by the parties, may be summarised as follows.
Drugs use is prohibited in prisons in the United Kingdom. In 1997-1998 the Public Health Laboratory Service carried out an anonymised survey in eight prisons, the results of which indicated that the prevalence of HIV was 0.36%, Hepatitis B was 7.8% and Hepatitis C was 7.5%. 24% of the prisoners surveyed had injected drugs at some stage, 30% of whom had injected whilst in prison. 75% of those who injected in prison shared equipment. The most recent Home Office Study (Research Study 267, July 2003) suggested that 2% of prisoners inject drugs while detained, acknowledging that there may however have been significant under-reporting due to the stigma attached to drugs use. The Department of Health identify Hepatitis B and C and HIV as the most common serious viruses carried in the bloodstream. They can cause serious long-term health problems or be life-threatening. The Department considers Hepatitis C as being the certified cause of death in about 100 people per year and as contributing to a further 5,000 deaths each year from the complications of chronic liver disease. It has also identified the sharing of needles by intravenous drugs users as being responsible for over 91% of cases of Hepatitis C between 1992 and 2002.
Needle exchange programmes, whereby equipment is exchanged for sterile needles and syringes, are generally acknowledged as an important way of reducing the risk of infection from the sharing of needles and syringes. Reports suggest that once-only use of sterile needles and syringes is the most effective measure for preventing infections. There are also a number of studies suggesting that in practice disinfection of needles is less effective at preventing transmission. The Department of Health’s statistics suggest that at least 99% of health authorities have needle exchange programmes available to the general public. In prisons there have never been needle exchange programmes.
In 1995 the Prison Service’s AIDS Advisory Committee recommended that disinfecting agents be made available to prison inmates in England and Wales as a measure to lessen the risks of spreading infections from shared use of drug injecting equipment. This recommendation was implemented but withdrawn after only a few weeks due to health and safety concerns surrounding the tablets. Three years later a pilot project was launched, involving 11 prisons, which was evaluated by the London School of Hygiene and Tropical Medicine in a detailed report. It concluded that there were real benefits from reintroducing disinfecting tablets and recommended that tablets be made available throughout prisons. On 1 December 2003 Prison Service Instruction No. 53/2003 issued, introducing a scheme to make tablets available as from 1 April 2004. The scheme is currently being implemented and evaluated.
Tablets have been available in Scottish prisons since 1993, in which jurisdiction a pilot needle exchange programme has been reported to have been recently initiated.
The applicant is a prisoner. In 2004, he instructed solicitors as he was concerned that the provision of tablets instead of needle exchange programmes failed sufficiently to address the risks caused by the sharing of infected needles. Such risks were not confined to drugs users but also other prisoners or prison staff who could be accidentally infected.
In correspondence with his solicitors, the Department of Health acknowledged that tablets would only disinfect, not reach the clinical standards of sterilization. They stated that there was no plan to introduce a needle exchange programme. In correspondence with his solicitors, the Treasury Solicitor explained that the introduction of tablets was a reasonable and proportionate response as Hepatitis B and C would be inactivated by several moderately potent disinfectants and stated the view that needle exchanges would increase drugs use and the number of needles in circulation. It was stated that it was not always possible to replicate health care provided in the community and that disinfecting tablets provided an effective way of cleaning needles and fell within the range and quality of health services to be provided to prisoners.
On 11 November 2004, the applicant commenced judicial review proceedings arguing that the failure to introduce a trial of needle exchanges into English and Welsh prisons violated Articles 2, 3 and 8 of the Convention. He did not specify whether he was himself an intravenous user of drugs, claiming that other prisoners and staff could be affected by the risks of needle sharing. Permission to pursue such proceedings was refused after consideration of the papers by Mr Justice Harrison. The application was renewed orally and there was a full hearing before Mr Justice Beatson at which the applicant and the Secretary of State were represented by counsel.
The Secretary of State relied on the following grounds:
the Prison Service was concerned not to increase drugs use and there was no safe way of injecting drugs;
drugs use was dropping in prison – this might in part be due to a lack of needles and a concern about infectious diseases;
needle exchanges would increase the number of syringes in prison;
the introduction of needle exchanges was to be kept under review.
It was accepted that if a prisoner did inject drugs it was safer to use a new syringe rather than a disinfected syringe. Later, in the oral proceedings, counsel for the Secretary of State also alleged that syringes could be used as weapons.
At the conclusion of argument, Mr Justice Beatson refused the applicant’s renewed application for permission to apply for judicial review. He found that steps taken by the Secretary of State to protect the health of prisoners were not unreasonable, noting that providing syringes would remove one of the disincentives to prisoners injecting themselves and that the effect of a decision to introduce a policy of distributing disinfecting tablets had yet to be assessed. He also found that the security considerations of managing a prison population in which people lived cheek by jowl meant that it was not realistic to assume that the same regime could apply as in the community. He found no issues arising under Articles 2 or 3 of the Convention.
The applicant’s legal representatives obtained new evidence which was submitted in the renewed application to the Court of Appeal. This was a report dated July 2005 from the Addiction Development Officer of the Scottish Prisons Addictions Team which inter alia noted that rigorous evaluations in Germany and Switzerland consistently found that needle exchange programmes did not increase drugs use, drugs users or the amount of drugs in circulation; that the provision of bleach was only a partial solution and its use often inadequate; lower transmission rates of HIV and hepatitis had been found to result from needle exchange schemes which had been in operation in 46 prisons in 4 European countries for ten years, without any increase in drugs use, interference with drugs prevention strategies or attacks on either staff or prisoners. It was stated: “... it could be argued that the refusal to make sterile equipment available to prisoners is actually condoning the spread of HIV and HCV among prisoners and, indirectly, to the community at large.”
On 29 November 2005, the Court of Appeal refused the renewed application for permission to apply for judicial review. It noted that it was far from clear on the facts of this case that Article 2 was engaged. On the assumption that it was, it was nonsense to suggest that the failure to attempt a trial of needle exchanges amounted to a violation of the positive right to life. The applicant himself had only argued for a trial period which was an indicator in itself that the overall benefits of such a policy had yet to be established. There was no satisfactory evidence as to the difference in the decreased risk to life inherent in a needle exchange programme as opposed to a disinfectant scheme. Also the United Kingdom was far from alone in refusing to introduce such programmes. It was satisfied that there remained a legitimate concern that a needle exchange programme might increase drugs use and the number of syringes in prison. While in the future the balance might tip in favour of needle exchange programmes this was not inevitable and the Home Office had put in place an effective and sensible policy of assessing such programmes and the results thereof. It was emphasised that the matter should be kept under review.
Prison Service policy provides as follows:
Standards: Health Services for Prisoners (May 2004)
“To provide prisoners with access to the same range and quality of services as the general public receives from the National Health Service.”
The Committee for the Prevention of Torture has set out in its general standards the following approach to medical services in prison (Chapter III Health Care Services in Prison):
“b. Equivalence of care
i) general medicine
38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.
d. Preventive health care
52. The task of prison health care services should not be limited to treating sick patients. They should also be entrusted with responsibility for social and preventive medicine.
...ii) transmittable diseases
54. A prison health care service should ensure that information about transmittable diseases (in particular hepatitis, AIDS, tuberculosis, dermatological infections) is regularly circulated, both to prisoners and to prison staff. Where appropriate, medical control of those with whom a particular prisoner has regular contact (fellow prisoners, prison staff, frequent visitors) should be carried out. ”
Rule 40 of the European Prison Rules
"Medical services in prison shall be organised in close relation with the general health administration of the community or nation. ...
Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation."
Drug use was common in prison, with most studies reporting prisoners who have used drugs as at 50% or greater. While it was true that some prisoners stopped injecting on entering prison, some continued: a 2002 European Union report showed that 0.3% to 34% of the prison population injected while incarcerated. Elevated risks of HIV and HCV flowed from the prevalence of sharing needles, often home-made (with additional risks of scarring, vein damage and other infections). HIV infection ran from a reported 4% in Russia to 38% in some prison populations in Spain. The vast majority of peer-reviewed studies put HCV infection at between 20-40% of prison populations.
Cleaning syringes with disinfectant such as bleach did not sufficiently reduce the risk of infection. Bleach was not fully effective in reducing HCV transmission. While repeated applications of bleach had been shown to eliminate HIV in syringes, field studies indicated users (amongst those who bothered to avail themselves of available bleach) had trouble following the instructions correctly and thus the method offered no, or little, protection.
Needle exchange programmes (NEPs) had been acknowledged to be the most effective harm reduction method in the community, reducing infection substantially without increasing the initiation, duration or frequency of illicit drug use. NEPs had been in operation in prisons since 1992 and now existed in at least one prison within nine jurisdictions: Armenia, Belarus, Germany, Kyrgyzstan, Luxembourg, Moldova, Scotland, Spain and Switzerland. NEPs were also in development in Belgium, Iran, Portugal, Tajikistan and Ukraine. The evidence and experience from the prison schemes showed that they reduced needle-sharing, reduced drug overdoses and led to a decrease in abscesses and injection-related injections and facilitated referral of users to treatment programmes. It had not been demonstrated that they resulted in an increase in drug consumption, increase in drug injection or in any incidents of intentional use of needles as weapons or accidental needle-stick injuries.
HIV prevalence in drug injectors (IDUs) was about 2.1% in England and Wales. 31% of HCV infections occurred in current IDUs and 57% in ex-IDUs as opposed to 12% in non-IDUs. Infection rates were substantially higher amongst the prison population than the general population. The Health Protection Agency identified NEPs as the key to preventing infections amongst IDUs in the community. This was also the established opinion of the National Health Service. An estimated 90% of IDUs in England and Wales had accessed a needle exchange service. No such facilities were available in prisons. Some eight prisons appeared to be using disinfectant tablets, which were to be made available in all prisons during 2007. The Prison Service nonetheless had the responsibility, under guidelines, to ensure that prisoners had access to health services broadly equivalent to those in the community. The Department of Health did not consider that disinfectant tablets were an adequate response to risks of HIV and HCV transmission for the general public. There was strong evidence from around the world that NEPs in prison did not produce countervailing effects that could outweigh the benefits to prisoners. There had been no instances of needles being used as a weapon, nor any increase in drug use or injections. The only difference was that the possession of needles had ceased to be illegal. The fact that drugs use did drop on entry to prison was probably a consequence not of the absence of clean needles but of the fact that possession and use were illegal in prisons and that prisoners were closely supervised.