ITEMID: 001-70407
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: MENTZEN v. LATVIA
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a Latvian national who was born in 1972 and currently lives in Belgrade (Serbia and Montenegro). The respondent Government were represented by Ms I. Reine, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 December 1998 the applicant married a German national, Mr Ferdinand Carl Friedrich Mentzen. The marriage was celebrated and registered at Bonn II Registry Office (Standesamt Bonn II) in Germany, which delivered a marriage certificate (Heiratseintrag) to the couple the same day. In the marriage certificate, the applicant was given her husband’s surname “Mentzen”.
In August 1999 the applicant asked the Nationality and Migration Service of the Latvian Ministry of the Interior (Iekšlietu ministrijas Pilsonības un migrācijas lietu pārvalde –“the Nationality and Migration Service”) to replace her former Latvian passport that had been issued in her maiden name with a new passport in her married name. She made an express request for her new surname to be retranscribed correctly, without any amendment.
On 10 September 1999 the Nationality and Migration Service issued the applicant with a new Latvian passport. However, on page 3, the main page containing all the passport holder’s basic details, her surname appeared as “Mencena”, not “Mentzen”. Officials at the Nationality and Migration Service explained to the applicant that the changes in the written form of her surname had been made on the basis of Regulation no. 174 on the transcription and identification of forenames and surnames in documents, which required all surnames and forenames to be reproduced “in accordance with the spelling rules of the Latvian literary language” and “as near as possible to their pronunciation in their original language”. Consequently, the affricative consonant “tz” was replaced by the letter “c”, which is pronounced [ts] in Latvian and therefore has the same phonetic value. Likewise, the inflectional ending “-a” was added to the applicant’s surname, denoting the feminine nominative singular. However, in the section entitled “Special remarks” (“Īpašas atzīmes”) on page 14 of the passport, the Nationality and Migration Service affixed a special stamp certifying that the original form (oriģinālforma) of the surname was “Mentzen”.
After trying in vain to persuade the officials at the Nationality and Migration Service who had issued her with the passport to rectify the written form of her surname, the applicant lodged an internal appeal with the departmental head. She argued among other things that the phonetic transcription and grammatical adaptation of her surname had violated her right to respect for her family life, as guaranteed by Article 8 of the Convention. On an unspecified date, the departmental head dismissed her appeal on the grounds that page 14 of the passport provided the original version of the surname “Mentzen” in any event and that there had therefore been no alteration to the surname.
The applicant issued proceedings against the Nationality and Migration Service in the Court of First Instance of the Riga City Centre District, which dismissed her claim in a judgment of 23 March 2000. After referring to an opinion of the linguistic consultations department of the Institute of the Latvian Language (Latviešu valodas institūta Valsts valodas konsultāciju dienests) dated 21 December 1999, which stated that the transcription of the German name “Mentzen” into Latvian had to be “Mencena” for a woman, the Court of First Instance found that the applicant’s surname had been transcribed in accordance with the applicable regulations, namely Regulation no. 310 on the passports of Latvian citizens, and Regulation no. 174 on the transcription and identification of forenames and surnames in documents. It also pointed out that persons finding themselves in that situation could always have the original form of their surname entered in the section of the passport entitled “Special remarks” if they so wished.
The applicant appealed against that judgment to the Riga Regional Court, arguing, inter alia, that the Court of First Instance had misconstrued the domestic legislation. In her appeal, the applicant criticised the very principle of “Latvianisation” of the written form of foreign surnames and forenames. In her submission, the two sets of regulations cited in the impugned judgment violated the right to respect for private life guaranteed by Article 8 of the Convention and Article 96 of the Latvian Constitution. The applicant also pointed out that neither the Official Language Act nor the relevant regulations required any grammatical or spelling changes to foreign trademarks or commercial undertakings. That being so, it was questionable whether such a practice with regard to names was either necessary or proportionate. Lastly, the applicant said that, owing to the change in the written form of her surname, she and her husband now had two different surnames in their identity papers, which made their identification as members of the same family more difficult.
In a judgment of 24 October 2000, the Regional Court dismissed the applicant’s appeal. After noting that the Nationality and Migration Service had fully complied with the applicable law and regulations, it accepted that the situation complained of could be regarded as interference with the right guaranteed by Article 8 of the Convention. However, it considered that the interference, which was intended to protect the Latvian language, was consistent with the second paragraph of that provision. With regard to the applicant’s submission that different rules applied to trademarks and company names, the Regional Court considered that it had no bearing on the case before it, since people’s names fell into a completely different category and were governed by special rules.
The applicant appealed on points of law to the Cassation Division of the Supreme Court, arguing, inter alia, that the protection of the Latvian language could not be a legitimate aim for which restrictions were permitted by Article 116 of the Constitution and Article 8 § 2 of the Convention. In a judgment of 31 January 2001, the Cassation Division dismissed her appeal, holding that, since the original form of the surname “Mentzen” appeared on page 14 of her passport, there had been no violation of her right to respect for her private life.
After amendments to the Constitutional Court Act (Satversmes tiesa) had come into force, the applicant lodged an appeal (konstitucionālā sūdzība) with that court seeking a declaration that section 19 of the Official Language Act and Regulation no. 295 on the transcription and identification of forenames and surnames were unconstitutional. She submitted that the impugned provisions contravened Articles 96 and 116 of the Latvian Constitution.
The Constitutional Court decided the issue in a judgment of 21 December 2001 (case no. 2001-04-0103). After acknowledging that surnames came within the scope of private life, it stated:
“...
(2) ... The Constitutional Court accepts the applicant’s argument that the ‘Latvianisation’ [latviskošana] of her surname affected her emotionally. The fact that her surname is not spelt in the same way as her husband’s is a source of unpleasantness and social inconvenience. It makes daily life more complicated, as she has to give additional explanations on her relationship with her partner. While the misunderstandings are eventually cleared up, it all takes time.
... One of the main functions ... of the forename and surname is to make it possible to identify people and to determine the relationship of the person concerned with his or her family.
In view of the applicant’s psychological attitude to the transcribed surname and the complications it entails in daily life which, especially abroad, can be seen in the difficulty which others have in determining her relationship with her family, and since the stability of the surname affects not only the individual’s private life but also the interests of society, the provision requiring foreign surnames in passports issued in Latvia to be transcribed in accordance with the traditions of the Latvian language and its linguistic rules must be considered to constitute interference in private life.
...
(3.1) ... [The] interference in the applicant’s private life is in accordance with the law, as it has been provided for by regulations issued by the Cabinet.
(3.2) The applicant’s argument that the Latvian transcription of her surname does not pursue any of the aforementioned legitimate aims is without basis. Names are one of the features of language and the issue of the rules applicable thereto affects the entire system of language. It can be seen from the case file that the applicant in fact criticises the very principle of transcribing foreign surnames, which is a characteristic of the Latvian language. Consequently, in order to determine whether the interference ... pursues a legitimate aim, it is necessary to examine the role of the Latvian language in Latvia.
By declaring that the official language of the Republic of Latvia is Latvian, Article 4 of the Constitution accords it constitutional status. The constitutional status of the official language reinforces the legal basis for the use of Latvian in documents issued by the Republic of Latvia. Regard being had to the fact that a Latvian citizen’s passport is an official document that not only identifies the person concerned, but also attests to a permanent legal link between the individual and the State, that person’s surname and forename must be written in the official language.
... The Constitutional Court agrees with the opinion of the expert ... that the surname is used not just by the person so named, but also by society. Consequently, surnames must be regulated ... for the convenience of members of society.
Owing to historical factors, in particular the fact that the proportion of Latvians [of origin] on the national territory has diminished during the course of the twentieth century, the Latvian nation represents only a minority in some large towns, including Riga ..., and the Latvian language has only recently recovered its status as the official language. The need to protect the official language and to consolidate its use is, therefore, closely linked to the democratic regime of the Latvian State.
Regard being had to the fact that, ... in the context of globalisation, Latvia is the only place in the world where the existence and development of the Latvian language and, by the same token, the Latvian nation, can be guaranteed, a restriction or limitation on the use of [this] language ... on the national territory constitutes a threat to the democratic regime of the State.
[In a recent judgment,] the Constitutional Court of Lithuania also came to the conclusion that the official language helps to preserve national identity, unites the nation, and serves to express national sovereignty and the indivisibility of the State ...
That being so, the purpose of the interference in the applicant’s private life was to protect the right of other residents of Latvia to use the Latvian language freely throughout the national territory and to protect the democratic regime of the State. Accordingly, the interference ... pursued legitimate aims.
(4) ... [It] is necessary to examine whether the interference [in issue] was proportionate to the legitimate aims [it pursued].
(4.1) ... the Constitutional Court has no doubt that the written form of names in documents has a direct bearing on the other spheres in which the language is used, as they are closely connected. If the written form of foreign names in documents were only permitted in their original form, it would be coherent and logical for their use [in this form] to spread progressively, because names are used in different texts. It is impossible to isolate the written form of foreign names in identity papers from [their written form in other types of document]. That would seriously threaten the quality of the Latvian language and, therefore, the function of [this] language in society ...
The evidence in the case file shows that the [impugned] interference has not prevented the applicant ... from exercising other rights she possesses, such as to cross her and other States’ borders, to vote in elections and to receive mail. The inconvenience an individual might suffer in his or her daily life does not constitute a sufficient ground for not applying rules that are the consequence of the language’s official status.
The Constitutional Court considers that the damage to the functioning of the Latvian language as a single system that would result from writing foreign names in their original form only would outweigh the inconvenience individuals might suffer as a result of using a passport issued in a surname transcribed in accordance with the traditions of the Latvian language.
In these circumstances, the functioning of the Latvian language as a single system ... constitutes a social necessity, not a whim of the State authorities.
In some cases, transcription of the surname may make it more difficult to identify a person or to determine his or her relationship with his or her family (partner). However, the interests in protecting Latvian as the official language and, therefore, in protecting the democratic State system, justify [this interference].
(4.2) The applicant’s allegation that the surname that she acquired by marriage has been transformed is unfounded. The transcription [atveide] of a name does not constitute its translation into Latvian (it is not the Latvianisation of the noun [as such]), but its adaptation to the grammatical particularities of the Latvian language.
There are a large number of systems of writing in the world, which are widely used, and the differences between them make it objectively impossible when passing from one system to another to preserve the original form. Due to the difference between alphabets, absolute conformity to the original is impossible even between languages using Latin characters. In Latvian, since the beginnings of written language, the settled practice has been to transcribe foreign names according to their pronunciation in the original language, not their written form. Regulation no. 295 translates this principle governing the written form of foreign names, which is a characteristic of the Latvian language, into a legal rule ...
Both the [Official] Language Act and Regulation no. 295 refer to rules of literary language. ... [At] the base of Latvian grammar are declensions. The word endings indicate the gender and number of ordinary and proper nouns and the function of the word in the sentence. The declinable word-ending of a name indicates the gender of the bearer of the name. In many Indo-European languages (such as English, German and French), either names have no grammatical gender or no distinction is made in the form of male and female surnames. Consequently, in these languages, foreign names can be incorporated into a sentence in their original form without destroying the grammatical system of the language. However, in Latvian, a foreign surname cannot be included in a sentence ... unless it is written in the way it is pronounced and has an ending. Consequently, the traditions governing the written form of foreign names are based on the grammatical particularities of the Latvian language.
The Constitutional Court cannot therefore accept the applicant’s submission that the damage to her rights is greater than the benefit to the State. With a limitation of this sort on the private life of the individual, the State enhances the stability of the Latvian language system. Compliance with the codified traditional rules ... in all spheres of use and writing of names, including documents, plays an integral role in the concrete historical circumstances of the State in establishing the status of the official language. ...
(4.3) In order to reduce the inconvenience caused by the transcription of a person’s name as far as possible, the [Official] Language Act provides: ‘[When] the person concerned ... so wishes and is able to produce documentary evidence [of it], the original form of the foreign surname shall be indicated in the passport, in addition to his or her forename and surname as transcribed ...’
The meaning of the expression ‘in addition to’ [papildus] has been defined by the Cabinet in its Regulation no. 310. Paragraph 6 of this regulation provides: ‘... when the person concerned so wishes, the original form of his or her surname and forename shall be entered in the section “Special remarks”, in accordance with the documentary evidence [supplied] ...’ ...
However, section 3 of Directive no. 52 issued by the head of the Nationality and Migration Office ... provides for the original form to be entered only on page 14 of the passport, that is to say after the other [relevant personal] details. ...
Regard being had to the fact that, by choosing the place where the original form of the surname ... should be entered, the Cabinet has not done all in its power to ensure that the transcription of the surname causes the least harm to the individual, the provision of Regulation no. 310 ..., which provides that the original form ... is to be entered in the field ‘Special remarks’, constitutes disproportionate interference with private life ... and is therefore incompatible with Article 96 of the Constitution and section 19(2) of the Official Language Act.”
On the basis of this reasoning, the Constitutional Court found section 19 of the Official Language Act, which establishes the general principle that foreign surnames are to be transcribed phonetically and adapted grammatically, consistent with Article 96 of the Constitution. However, it declared the regulation requiring the original form of the surname to be indicated on page 14 of the passport and not in a more visible location nearer the front to be unconstitutional, having regard to the fact that the main page of the passport was page 3. The Constitutional Court stated in particular that these provisions, including section 3 of Directive no. 52, would cease to be effective and would lapse on 1 July 2002.
Article 4 of the Latvian Constitution (Satversme) provides: “The Latvian language is the official language in the Republic of Latvia.” Article 96 of the Constitution guarantees “inviolability of private life, the home and correspondence”. However, Article 116 permits restrictions on the exercise of that right in order to “protect the rights of others, the democratic structure of the State, public safety, welfare and morals”.
Section 3 of the Forenames and Surnames (Written Form in Documents) Act of 1 March 1927 (Likums par vārdu un uzvārdu rakstību dokumentos), which has been repealed, laid down that forenames and surnames of foreign origin were to be written as they were pronounced in Latvian, with the adjunction of the appropriate inflectional ending.
Section 18 of the former Linguistic Act (Valodu likums), which was in force until 31 August 2000, provided:
“Latvian names shall be used in accordance with Latvian traditions and the rules of the language.
Names of foreign origin shall be transcribed and used in Latvian in accordance with the rules of transcription [atveide] applicable to names of foreign origin.”
Section 19 of the new Official Language Act (Valsts valodas likums), which was passed on 9 December 1999 and came into force on 1 September 2000, reads as follows:
“(1) Names shall be transcribed in accordance with the traditions of the Latvian language and the rules applicable to literary language, regard being had to the provisions of subsection (2) of this section.
(2) The historical form of the family surname of the person concerned or, if he or she ... so wishes and is able to adduce documentary evidence [of it], the original form of the foreign surname transliterated into the Latin alphabet, shall be entered in the passport and birth certificate in addition to his or her forename and surname transcribed in accordance with the current forms of the Latvian language.
(3) Regulations shall govern the spelling and identification of forenames and surnames and the spelling and use of foreign names in the Latvian language.”
The relevant parts of Regulation no. 174 of 14 May 1996 on the transcription and identification of forenames and surnames in documents (Noteikumi par vārdu un uzvārdu rakstību un identifikāciju dokumentos) provide:
“... In all documents drafted in the official language, the person’s name and surname shall be written in accordance with the spelling rules of the Latvian literary language, using only the letters of the alphabet of the Latvian literary language. All forenames and surnames (with the exception of indeclinable forenames and surnames) must have an ending that conforms to the rules governing nouns and adjectives in the Latvian language. The names of people of the female sex must have the ending of the feminine gender. The forenames and surnames of foreign origin ending in o, -ā, ē, i, ī, -u, -ū in the nominative singular are indeclinable in Latvian.”
“Irrespective of their etymology in Latvian, forenames and surnames of foreign origin must be written so as to be as close as possible to their pronunciation in the language of origin in accordance with the rules for transcribing foreign names. Depending on the sex of the person concerned, a masculine or feminine gender ending shall be added to forenames and surnames of foreign origin, unless the forenames or surnames are indeclinable.”
“If the form of the forename or surname entered in the documents delivered in the Latvian language is liable to make the holder’s identification more difficult, the original form of the forename or surname may be indicated in the passport in accordance with Regulation ... no. 310 on the passports of Latvian citizens ... If the language of origin does not use Latin characters, such indication will be through transliteration into the Latin alphabet.”
“The record of a person’s forename or surname in a document shall be legally identical to that contained in the birth certificate (or other document) if both records are wholly identical or the only differences between them are as follows:
(6.1) Each of the records is consistent with the grammatical or spelling rules of the Latvian language at different historical periods, [that is to say]:
(6.1.1) an ending has been added to the forename or the surname in one document, but not in the other;
(6.1.2) the ending of the forename or surname in each document is of a different declension;
...
(6.1.4) the forename or surname in each document is spelt differently;
...
(6.3) the forename and surname are written in a foreign language in one document and in Latvian in another;
...
(6.5) the forename or surname in each document is written using different rules for transcribing names of foreign origin.”
Regulation no. 295 of 22 August 2000 on the transcription and identification of forenames and surnames (Noteikumi par vārdu un uzvārdu rakstību un identifikāciju) largely repeats the provisions of the preceding regulation. The other relevant provisions of this regulation are as follows:
“If the person wishes to keep ... the historical form or original form of his or her surname and submits documents attesting to such form:
(8.1) the [competent] authorities shall indicate at a set point in the documents the historical form, original form or transliterated form of the person’s surname in the Latin alphabet ([that is to say] reproduced, letter by letter, from another alphabet);
...”
“The form of the surname ... written in Latvian shall be legally identical to the original form of the surname, the historical [form] or the form transliterated into Latin characters.”
“In copies and extracts, the forename and the surname shall preserve their original written form.”
“If the transcription of a person’s forename or surname is damaging to his or her vital interests, he or she may apply to the State Language Centre (Valsts valodas centrs) with a request for the name to be transcribed into Latvian in a form that is less damaging to his or her interests. The State Language Centre’s opinion on the manner in which the person’s forename and surname must be written in the official language shall be binding on the [competent] authorities.”
In Latvia the passport is the principal identity document of Latvian nationals. Paragraph 6 of Regulation no. 310 of 24 October 1995 on passports of Latvian citizens (Noteikumi par Latvijas pilsoņu pasēm), which was in force until 1 July 2002, provided that if a person wished to have the original written form of his or her forename and surname entered in his or her passport, it was to be entered in the section of the passport headed “Special remarks” (“Īpašas atzīme”). Section 3 of Directive no. 52 issued by the head of the Nationality and Migration Office (the statutory predecessor to the Nationality and Migration Service) states that the original written form must appear on a special stamp affixed to page 14 of the passport.
On 5 March 2002, following the Constitutional Court’s judgment cited above, the Cabinet adopted Regulation no. 96 on the transcription and use of names of foreign origin in the Latvian language (Noteikumi par citvalodu personvārdu rakstību un lietošanu latviešu valodā), meticulously codifying the rules for the transcription of foreign names. The relevant paragraphs of the regulation read as follows:
“In Latvian, feminine names, whether of Latvian or foreign origin, shall be formed and used with the respective feminine gender endings.”
“The equivalent of masculine names ending in -s shall be feminine names ending in a or -e.”
“From masculine names ending in -ens ..., the feminine will be formed with the ending -a, for example: Rībens – Rībena, Kacens – Kacena.”
“[As regards names of German origin], [t]he provisions of the [preceding] paragraphs of this regulation shall not apply to consonants or specific groups of consonants, which are transcribed as follows:
...
(123.31) ’tz’ [is transcribed by] ‘c’ ...”
On 18 June 2002, in order to comply with the Constitutional Court’s judgment of 21 December 2001, the Cabinet adopted a new Regulation no. 245 on passports of Latvian citizens and foreign permanent residents in Latvia and the travel documents of stateless persons (Noteikumi par Latvijas pilsoņu pasēm, nepilsoņu pasēm un bezvalstnieku ceļošanas dokumentiem). The relevant provisions of the regulation, which came into force on 1 July 2002 and replaced the aforementioned Regulation no. 310, provide:
“In passports, the surname and forename ... of the person concerned shall be written in the form required by the law and regulations governing the spelling of surnames and forenames in the Latvian language.”
“When the written form of the surname ... on page 3 [main page] of the passport is different from its written form in the documents in which that name is written in its original form in another language ..., the original form ..., transliterated into the Latin alphabet, shall be entered on page 4 of the passport if the person ... so wishes and is able to provide documentary evidence of [the form concerned]. The transliteration into the Latin alphabet shall be effected in accordance with Appendix no. 4 to this regulation.”
“A passport shall be issued when:
...
(15.6) the person wishes to receive a [new] passport to replace a valid Latvian citizen’s passport ...”
In a judgment of 21 October 1999, the Lithuanian Constitutional Court (Konstitucinis teismas) ruled on the conformity with the Lithuanian Constitution of a resolution of the Supreme Council dated 31 January 1991 on the written form of forenames and surnames in the passports of citizens of the Republic of Lithuania (Dėl vardų ir pavardžių rašymo Lietuvos Respublikos piliečio pase). The relevant parts of this judgment read as follows:
“... Article 14 of the Constitution provides that the official language shall be Lithuanian. The fact that the status of official language is enshrined in the Constitution means that Lithuanian has constitutional value. The official language preserves the identity of the nation, unites the civil nation, secures the expression of national sovereignty, the integrity and indivisibility of the State and the proper functioning of State institutions and local authorities. The official language is an important guarantee of equality before the law as it enables all citizens to enjoy the same relations with State institutions and local authorities when asserting their legitimate rights and interests. According the official language constitutional status also signifies that the legislature must ensure by law that the use of this language is protected in public life and must, in addition, afford the means for protecting the official language. Since Lithuanian has acquired the status of official language in the Constitution, it must be used in State institutions and local authorities and in all institutions, undertakings and organisations located on Lithuanian territory. Statutes and other legal instruments must be promulgated in the official language. Clerical, accounting, management and financial documents must be drafted in Lithuanian. Lastly, correspondence between State institutions and local authorities, establishments, undertakings and organisations must be written in the official language.
...
Since the passport of the Lithuanian citizen is an official document that attests to the permanent legal relationship between the individual and the State, namely the nationality of the person, and since the question of nationality comes within the sphere of the public life of the State, the individual’s forename and surname must be written in the official language. Otherwise, the constitutional status of that language would be called into question.
...
As has been stated above, the sphere in which the use of the official language is obligatory is public life in Lithuania. Consequently, it is not obligatory in private life, in which people may use the language of their choice. The resolution of the Supreme Council does not regulate private life. It only determines how forenames and surnames are to be written in the passports of Lithuanian citizens. ...
...
... It must be noted that the provisions of the Supreme Council’s resolution requiring a person’s forename and surname to be written in Lithuanian letters [and] as they are pronounced apply to all citizens without exception, without distinction on grounds of ethnic origin or otherwise. A person’s membership of an ethnic group is a matter for that person to decide, that is to say that no one other than the person concerned is qualified to determine the ethnic group to which he or she belongs. Consequently, it is impossible to create exceptions enabling the official language to be used in accordance with the ethnic origin of the person concerned. Likewise, ethnic origin cannot be relied upon in support of a request for exemption from the provisions that result from the language’s status as the official language. Otherwise, the constitutional principle of the equality of everyone before the law would be infringed. ...”
Currently, the main international instruments on the use of surnames and forenames are the conventions of the International Commission on Civil Status (ICCS). In particular, Convention no. 14 on the Recording of Surnames and Forenames in Civil Status Registers signed in Berne on 13 September 1973 has been ratified by Germany, Austria, Greece, Italy, Luxembourg, the Netherlands and Turkey. Latvia is not a signatory to it. The relevant Articles of this convention read as follows:
“Where a record is to be made in the civil status register by an authority of a Contracting State and there is produced for that purpose a copy of or extract from a civil status record or some other document that shows the surnames and forenames in the same characters as those used in the language in which the record is to be made, those surnames and forenames shall be reproduced literally without alteration or translation.
Any diacritic marks forming part of such surnames and forenames shall also be reproduced, even if such marks do not exist in the language in which the record is to be made.”
“Where a record is to be made in the civil status register by an authority of a Contracting State and there is produced for that purpose a copy of or extract from a civil status record or some other document that shows the surnames and forenames in characters other than those used in the language in which the record is to be made, those surnames and forenames shall be reproduced as far as possible by transliteration, without being translated. If there are standards recommended by the International Organisation for Standardisation (ISO), they shall be applied.”
“In the event of a discrepancy in the spelling of surnames or forenames between two or more of the documents produced, the person concerned shall be designated according to the civil status records or documents establishing his or her identity that were drawn up in the State of which he or she was a national at the time when they were drawn up.
For the purposes of this provision, the term ‘national’ includes not only persons who hold the nationality of a given State but also refugees and stateless persons whose personal status is governed by the law of that State.”
The relevant parts of the explanatory report to the convention, adopted by the General Assembly of the ICCS on 14 September 1973, provide:
“...
It is hardly necessary to emphasise the need for such uniformity. Since surnames and forenames are the main means of identifying a person, they must be consistent wherever he or she may be, and the uniformity must be reflected in all civil status records that concern him or her.
The Convention is essentially technical in nature. It is confined to prescribing that the surnames and forenames to be shown in civil status records are to be an exact reproduction of the surnames and forenames appearing in existing records or documents produced with a view to the making of a further record. ...
...
Article 2
...
Of the various systems for reproducing names, the Article chooses the literal system; all the letters which go to make up the surname and forenames are reproduced without modification. This system is the only one that will ensure uniformity, by avoiding, for example, the letter ‘u’ being changed into ‘ou’ or ‘oe’ or the letters ‘cz’ into ‘c’ or ‘tch’.
The literal reproduction rule also applies to diacritic marks. Examples are the letter ‘ü’ with diaeresis or the letter ‘ö’ which will be copied as ‘ö’ and not changed into ‘oe’. Diacritic marks must be reproduced, even if they do not exist in the language in which the record is to be made. If the record is typewritten, the diacritic marks are to be added by hand if necessary.
The first paragraph of the Article also provides that surnames and forenames shall be reproduced without being altered or translated. However, it should be remembered that the strictness of this rule, which is especially important where particles, declined names and forenames are concerned, is tempered, in appropriate cases, by the provisions of the second, third and fourth paragraphs of Article 1.
...
Article 3
...
Of the various systems of transposition, the Article chooses transliteration: each letter, with any diacritic marks, is reproduced by its equivalent in the other language.
...
Where there are no standards recommended by ISO, the transposition must, as far as possible, still be achieved by transliteration.
Thus, there are at present no standards for the transliteration of Latin characters into Greek characters. Transliteration does however seem possible in many cases, especially with the help of the transliteration rules contained in ISO/R843 (international system for the transliteration of Greek characters into Latin characters).
On the other hand, it seems clear that in the total absence of standards it is not possible to transliterate Cyrillic, Arabic or Hebrew characters into Greek characters, or Chinese characters into Greek or Latin characters. In these circumstances reproduction can be achieved, in the cases envisaged, by another process such as phonetic transposition. However, even in that event, translation is still forbidden. The surname and forenames must be reproduced by transliteration from the records and documents produced with a view to the making of the further record.”
At its meeting in Berlin on 11 September 1992, the ICCS General Assembly adopted the following resolution:
“The ... Assembly ... is of the opinion that the phrase ‘or some other document that shows the surnames and forenames’, contained in the first paragraph of Article 2, covers any public document even if it does not emanate from a civil registrar, such as a passport of the person concerned.”
On 30 March 1993 the European Court of Justice (ECJ) delivered a judgment in Christos Konstantinidis v. Stadt Altensteig, Standesamt, and Landratsamt Calw, Ordnungsamt (C-168/91, European Court Reports 1993, p. I-1191). In this case, which concerned a referral by the Tübingen District Court (Amtsgericht) for a preliminary ruling, the ECJ had to consider the question of the compatibility of the transliteration of a Greek name with freedom of establishment, as guaranteed by former Article 52 of the Treaty establishing the European Community (which became Article 43 when the Amsterdam Treaty came into force). In that case, the name of the applicant in the main proceedings, Mr Christos Konstantinidis (Χρήστος Κωνσταντινίδης), a Greek national who worked as a masseur in Germany, was transcribed in a translation of his birth certificate and in the register of marriages as “Hrēstos Kōnstantinidēs”. This was the written form that resulted from the application of ISO Standard 18, as prescribed by Article 3 of ICCS Convention no. 14 (see above). The ECJ ruled as follows:
“11. ... [T]he national court’s two questions are to be regarded as seeking to ascertain, in substance, whether Article 52 of the Treaty is to be interpreted as meaning that it is contrary to that provision for the name of a Greek national who has settled in another Member State in order to pursue an occupation as a self-employed person to be entered in the registers of civil status of that State in a spelling differing from the phonetic transcription, whereby its pronunciation is modified and distorted.
12. In answering that question, it must first be borne in mind that, as the Court has stated on numerous occasions, Article 52 of the Treaty constitutes one of the fundamental legal provisions of the Community. By prohibiting any discrimination on grounds of nationality resulting from national laws, regulations or practices, that Article seeks to ensure that, as regards the right of establishment, a Member State accords to nationals of other Member States the same treatment as it accords to its own nationals ...
13. It must therefore be determined whether national rules relating to the transcription in Roman characters of the name of a Greek national in the registers of civil status of the Member State in which he is established are capable of placing him at a disadvantage in law or in fact, in comparison with the way in which a national of that Member State would be treated in the same circumstances.
14. There is nothing in the Treaty to preclude the transcription of a Greek name in Roman characters in the registers of civil status of a Member State which uses the Roman alphabet. It is therefore for the Member State in question to adopt legislative or administrative measures laying down the detailed rules for such transcription, in accordance with the prescriptions of any international conventions relating to civil status to which it is a party.
15. Rules of that kind are to be regarded as incompatible with Article 52 of the Treaty only in so far as their application causes a Greek national such a degree of inconvenience as in fact to interfere with his freedom to exercise the right of establishment enshrined in that Article.
16. Such interference occurs if a Greek national is obliged by the legislation of the State in which he is established to use, in the pursuit of his occupation, a spelling of his name derived from the transliteration used in the registers of civil status if that spelling is such as to modify its pronunciation and if the resulting distortion exposes him to the risk that potential clients may confuse him with other persons.
17. It should therefore be stated in reply to the national court that Article 52 of the Treaty must be interpreted as meaning that it is contrary to that provision for a Greek national to be obliged, under the applicable national legislation, to use, in the pursuit of his occupation, a spelling of his name whereby its pronunciation is modified and the resulting distortion exposes him to the risk that potential clients may confuse him with other persons.”


ITEMID: 001-57959
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF IRIBARNE PÉREZ v. FRANCE
IMPORTANCE: 3
CONCLUSION: No violation of Art. 5-4
JUDGES: Jean Claude Geus;N. Valticos;R. Pekkanen
TEXT: 6. Mr Francisco Iribarne Pérez, a Spanish national, lived in Andorra between 1981 and 1985. He now lives in Spain.
7. On 7 July 1985 the Andorran police arrested the applicant following the discovery of a quantity of drugs and a firearm, among other things, during a search of his home; he was held in police custody for four days. Two other persons were arrested in connection with the same proceedings.The applicant and the other two suspects were prosecuted on charges of importing prohibited drugs into Andorra, drug trafficking and unlawful possession of a firearm.
8. During the trial Mr Iribarne Pérez claimed that his confessions and those of the other two defendants had been made under duress. He apparently also pleaded that his participation in the alleged offences had been intended to secure the arrest of drug traffickers wanted by the Spanish guardia civil.
9. On 26 November 1985 the Tribunal de Corts gave judgment as follows:
"...
[The Tribunal de Corts] sentences Francesc Iribarne Pérez, who has been found guilty of importing, possessing and dealing in toxic substances and prohibited drugs and of unlawful possession of a firearm, to twelve years' imprisonment; ... orders that all the accused be deported from the Principality and that they pay costs; the time already spent in custody in connection with these proceedings by those convicted shall be deducted from the principal sentence.
This judgment is final."
The judgment was served on Mr Iribarne Pérez on 2 December 1985 in the presence of his lawyer.
10. In its report the Commission noted in addition that after two further trials the Tribunal de Corts sentenced the applicant to one year's imprisonment for bribing a civil servant and to six months' imprisonment for attempting to escape, and that Mr Iribarne Pérez claimed that these judgments - whose date has not been determined - were never served on him.
11. Mr Iribarne Pérez chose to serve his sentence in France and was taken to Toulouse prison on 17 December 1985.
On 16 March 1986 he attempted to escape and on 17 June 1987 was sentenced on that account to ten months' imprisonment by the Toulouse Criminal Court.
He served part of his sentence at Fresnes prison between 11 April 1986 and 12 January 1987 and was then moved to Muret prison.
12. On 28 January 1990 the applicant lodged a memorial with the Toulouse public prosecutor, complaining of the proceedings conducted against him in Andorra and of his detention in France.
In a letter to the governor of Muret prison dated 6 March 1990 and communicated to the applicant on 12 March, the public prosecutor replied as follows:
"Please inform Francisco Iribarne Pérez, prisoner number 4724, that he should address his petition to the President of the Tribunal de Corts, which has sole jurisdiction, as the judgment which imposed the sentence he is serving was delivered by that court.
Please inform him that no further action is to be taken in connection with his application of 28 January 1990."
13. On 14 January 1993 Mr Iribarne Pérez lodged a criminal complaint with the Court of Cassation against the Toulouse public prosecutor, alleging arbitrary detention and denial of justice. He also lodged an application to join the proceedings as a civil party. He claimed that the public prosecutor had not complied in his case with the requirements of Articles 713-1 et seq. of the Code of Criminal Procedure concerning the transfer to France of persons convicted abroad and had not even informed him of the existence of those provisions.
14. On 30 March 1993 the Minister of Justice wrote to the principal public prosecutor at the Toulouse Court of Appeal as follows:
"On 9 March 1993 you forwarded to me a letter from Mr Francisco Iribarne Pérez complaining of the proceedings as a result of which he came to serve his sentence in France.
I have the honour to inform you of the following.
Francisco Iribarne Pérez chose to serve his sentence in a French prison, as he was entitled to do under Article 210 of the Andorran Decree on Criminal Procedure of 10 April 1976. No right to retract such a choice is conferred by that provision.
A transfer carried out under the above-mentioned Convention of 21 March 1983 means a transfer from a `sentencing State' to an `administering State'.
With regard to the circumstances of the complainant's detention, France is indeed the State administering enforcement of the sentence imposed on him in Andorra, and there is no provision in the Convention for transfer from one administering State to another. I would add that, in any event, Andorra cannot even be regarded as the sentencing State, since in law it is not recognised as a State. It should be noted that the arrangement between France and Andorra in the matter of the execution of prison sentences is not the only one of its kind; it is similar to the situation under the Convention on neighbourly relations between France and the Principality of Monaco of 18 May 1963. With regard to application of Articles 713-1 et seq. of the Code of Criminal Procedure, concerning the transfer to France of persons sentenced and imprisoned abroad, those provisions are not applicable in this case, as Andorra is not considered a subject of international law and its courts are therefore not foreign courts within the meaning of Article 713-1."
15. The applicant was released on 13 August 1994 and then expelled from French territory.
16. The transfer to France of a person convicted abroad is governed by the following provisions of the Code of Criminal Procedure (Law no. 84-1150 of 21 December 1984):
"Where, by virtue of an international convention or agreement, a person detained in execution of a sentence passed by a foreign court is transferred to French territory in order to serve the remaining portion of his sentence there, the sentence shall be enforced in accordance with the provisions of this Code, and in particular Articles 713-2 to 713-6."
"Immediately after his arrival in French territory the convicted prisoner shall be brought before the public prosecutor of the place of arrival, who shall question him as to his identity and draw up a record of the interview. Where, however, it is not possible to question him immediately, the convicted person shall be taken to the local prison, where he may not be detained for more than twenty-four hours. On expiry of that limit the chief warder shall, without more, ensure that he is brought before the public prosecutor [since the entry into force of Law no. 87-432 of 22 June 1987 the words "chief warder" have been replaced by "prison governor"].
Having inspected the documents recording the States' agreement to the transfer and the prisoner's consent, together with an original or execution copy of the foreign judgment containing his conviction, accompanied, where necessary, by an official translation, the public prosecutor shall apply for the convicted person's immediate imprisonment."
"The portion of the sentence imposed abroad remaining to be served in the foreign State shall, by virtue of the international convention or agreement, be directly and immediately enforceable in French territory.
However, where the sentence imposed is more severe, in nature or length, than the penalty provided for in French law for the same offence, the criminal court of the place of detention shall, on an application by either the public prosecutor or the person convicted, substitute for it the sentence which is most similar in French law, or reduce it to the maximum the law allows. Consequently, the court shall determine, in the individual case, the nature of the sentence to be enforced and its length, which may not exceed the portion which remained to be served in the foreign State."
"The court shall give its decision in public, after hearing thepublic prosecutor, the person convicted and, where appropriate, the lawyer chosen by him or officially assigned at his request under the legal-aid scheme. This decision shall be enforceable immediately, any appeal notwithstanding."
"The time taken for the transfer shall be deducted in full from the sentence enforced in France."
"All appeals and applications relating to enforcement of the prison sentence remaining to be served in France shall be submitted to the criminal court of the place of detention. The provisions of Article 711 of this Code shall apply."
"Execution of sentence shall be governed by the provisions of this Code."
"No criminal proceedings may be brought or continued and no sentence may be enforced in respect of the same offence against a convicted person who, under the terms of an international convention or agreement, is serving in France a prison sentence imposed by a foreign court."
17. The Constitution of the Principality of Andorra, in force since 4 May 1993, and the Administration of Justice Act, of 3 September 1993, radically altered the Andorran judicial system.
18. In the Drozd and Janousek v. France and Spain judgment of 26 June 1992 (Series A no. 240, pp. 17-21, paras. 46-66) the Court described the Andorran legal system before 1993 as follows:
"46. With the exception of the Court of Visura, which settles disputes between neighbours and is responsible to the General Council, the courts of Andorra have their legal basis in the Co-Princes' historic `right of justice' and are thus directly responsible to the Co-Princes. The members of the lower courts are always of Andorran nationality, while those of higher courts are often of foreign origin, because of the smallness of the Principality and out of concern for preserving the independence of the judiciary.
47. As a general rule, judges are appointed by the Co-Princes. The French Co-Prince traditionally selects French judges, either honorary judges or serving judges seconded by the Ministry of Justice, chosen with regard to personal competence, knowledge of Andorran law, knowledge of Catalan and understanding of Spanish. The episcopal Co-Prince bases his choice on the criteria of competence, independence, lack of personal interests in Andorra and availability for service, judicial office in Spain being incompatible with the position of judge in Andorra, even on a part-time basis and for a fixed term.
1. Criminal justice
48. A decree of the veguers [(direct representatives in Andorra of the two Co-Princes, the President of the French Republic and the Bishop of Urgel)] of 30 December 1975 laid the foundations of a new criminal justice system, providing in particular for the intervention of counsel and the establishment of a public prosecutor's office. A decree on criminal procedure followed on 10 April 1976. A Code of Criminal Procedure, based on the veguers' decrees and on customary law, was introduced in 1984 and amended on 16 February 1989.
(a) The institutions
(i) The batlles
49. The batlles are first-instance judges with criminal and civil jurisdiction, and also have other duties. They carry out investigations into crimes which have been committed, supervise the enforcement of court judgments pronounced in Andorra, and sit on the Tribunal de Corts as non-voting assessors (see paragraph 52 below). Since the veguers' decree of 6 August 1977 they are four in number. The French veguer and the episcopal Co-Prince each appoint two of them, chosen from a list of seven names drawn up by the General Council of the Valleys. The persons appointed must have Andorran nationality.
(ii) The Court of Minor Offences
50. The Court of Minor Offences was established by the Co-Princes in 1988. It has first-instance jurisdiction over minor criminal cases and appeals against its judgments can be brought before the Tribunal de Corts.
(iii) The Tribunal de Corts
51. The Tribunal de Corts was until 15 October 1990 the supreme criminal court. It `judges ... all cases relating to offences committed on the territory of the Valleys, without difference or distinction of persons, and offences committed by Andorrans abroad' (Article 2 of the Andorran Code of Criminal Procedure). It also rules on appeals brought against judgments of the batlles.
52. The court is composed of three members, the Judge of Appeals and the two veguers.
The Judge of Appeals presides over the court, directs the proceedings and acts as the reporting judge who drafts the judgment. He decides alone on appeals concerning detention on remand. He is a French or Spanish judge appointed for five years by each Co-Prince alternately; he must have a knowledge of the law of the Principality and its official language, Catalan.
The veguers ... 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 ... 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.
(iv) The Tribunal Superior de Corts
54. By a decree of 12 July 1990, which had been in the course of preparation since 1981, the veguers established a new court, the Tribunal Superior de Corts, which consists of four judges appointed for five years by the Co-Princes and decides on appeals (recursos de suplicació) against judgments of the Tribunal de Corts. On the following day they issued a further decree dealing with procedure, including the following transitional provisions:
'1. Convicted persons who before the coming into force of the present decree have to serve or ... are in the course of serving sentences of imprisonment as a result of judgments of the Tribunal de Corts may bring an appeal (recurs de suplicació) against such sentences to the Tribunal Superior within a period of two months from the coming into force of the present decree.
2. The present decree shall come into force on 15 October 1990.'
(b) Enforcement of sentences
55. Article 234 of the Andorran Code of Criminal Procedure provides for two distinct systems of enforcement for sentences of imprisonment passed in Andorra: a convicted person serves his sentence in an Andorran prison if the sentence is less than three months, and in a French or Spanish prison in other cases.
(i) The choice of country of detention
56. In the latter case it is for the convicted person to choose between France and Spain. The choice is definitive and implies the tacit acceptance of the prison regime of the country chosen. This practice originates in customary law as traditionally applied since the twelfth century.
From 1979 to 1989, transfer to France was requested by 32 convicted persons and to Spain by 134. No prisoners from Andorra were admitted to French prisons in 1990 and 1991.
(ii) The French system
57. If a convicted person chooses France, as in the present case, enforcement of the sentence is governed by the provisions of the French Code of Criminal Procedure (circular of the Minister of Justice of 8 February 1983). Like any person convicted in a foreign country and transferred to France, he is entitled (according to the Government) to remission of sentence, prison leave and semi-imprisonment in the same way and subject to the same conditions as prisoners sentenced by a French court (Article D.505 of the Code of Criminal Procedure).
58. The judge responsible for the enforcement of sentences has sole jurisdiction to decide whether to grant the prisoner release on licence or to remit part of his sentence, within the legal limits.
If the term of imprisonment exceeds three years, it is for the Minister of Justice to grant release on licence. The Minister must first obtain the consent of the Tribunal de Corts (Article 253 of the Andorran Code of Criminal Procedure).
59. Under Article 710 of the French Code of Criminal Procedure, disputes relating to the enforcement of sentences are brought before the court which pronounced the sentence, in this case the Andorran court.
(iii) Pardons
60. An individual pardon can only be granted by the two Co-Princes acting jointly.
61. Collective pardons do not apply to prisoners sentenced by Andorran courts who serve their sentences in France, as they were expressly excluded by a decree of the President of the French Republic of 1985. The presidential decrees of 17 June 1988 and 13 June 1989 did authorise pardons to take effect if this was allowed by international agreements ratified by France, but there is no specific arrangement with Andorra on this point.
(iv) Amnesties
62. Only the Andorran authorities have jurisdiction to grant an amnesty. In addition, the Tribunal de Corts can vary its own decision by reducing the sentence and granting genuine release on licence, which is referred to as `provisional release'.
2. Civil justice
63. There are three levels of jurisdiction in civil matters.
64. The batlles (see paragraph 49 above) have first-instance jurisdiction, as in criminal cases.
65. The Judge of Appeals (see paragraph 52 above) hears appeals against the decisions of the batlles.
66. The court of final jurisdiction is the Higher Court of Andorra which consists of two `senates', the Higher Court of Perpignan and the Higher Court of the Mitre.
The former consists of two ex officio members (the President of the Perpignan tribunal de grande instance and the French veguer, who has not sat for many years now) and two members appointed for four years by the French Co-Prince (a lawyer from the Perpignan bar and a person with knowledge of the language and customs of Andorra). It does not apply French law or follow French procedure; in particular, it is not subject to review by the Court of Cassation.
The latter senate consists of a President, a Vice-President and four judges (vocals), appointed by the episcopal Co-Prince. The two senates have their seats at Perpignan and Urgel respectively, but carry out their functions in Andorra."
19. Since 1992 only one prisoner from Andorra has been admitted to a French prison.
20. In their joint report of 27 May 1994 on the legislation of the Principality of Andorra prepared at the request of the Bureau of the Parliamentary Assembly of the Council of Europe (Addendum III to Document 7080) Mr Manuel Antonio Lopes Rocha, Judge of the European Court of Human Rights, and Mr Jean-Claude Geus, member of the European Commission of Human Rights, made the following observations:
1. The Constitution and the qualified law on justice have radically reformed the Andorran judicial system. The system described by the European Court of Human Rights in paragraphs 46 to 54 and 63 to 66 of its judgment in the case of Drozd and Janousek of 26 June 1992 (Series A no. 240) is consequently a thing of the past.
At present, the court of first instance is the Batllia or Tribunal de Batlles and the Batlles themselves who have criminal, civil and administrative jurisdiction. The Batlles sit as one-person courts for petty criminal offences, for civil cases involving minimal amounts and for administrative cases concerning social security disputes. In other cases, the Tribunal de Batlles meets with three members or in plenary.
The Tribunal de Corts acts as a first-instance court for major offences and as an appeals court for petty and minor offences.
As for the Superior Court of Andorra, it has jurisdiction for all appeals lodged against judicial decisions handed down by the Batllia in civil and administrative cases, and by the Tribunal de Corts in criminal cases.
All judges are appointed for a renewable six-year term by the High Council of Justice. During their term of office they are irremovable. The office of judge is incompatible with any public office and with the exercise of any other professional activity.
Under Article 86, paragraph 3, of the Constitution, criminal judgments are handed down by a judicial authority other than the one in charge of the investigation.
The office of the public prosecutor forms a separate body possessing a status like that of the judiciary. Its members cannot receive instructions from the political authorities.
The High Council of Justice is composed of five members appointed as follows: one by each Co-Prince, one by the Sindic General [who presides over the Consell General, which is the legislative organ and whose members are elected by universal suffrage], one by the Head of Government and one by the judges. Their six-year term is not renewable. The High Council appoints the judges, the Attorney General and his deputies. It exercises disciplinary power and, generally speaking, administers justice. There is then no Minister of Justice in Andorra. The High Council of Justice also has the task of guaranteeing the independence of Andorran justice, which formerly was the responsibility of the Co-Princes. The Co-Princes could not, however, exert any influence over the judges on account of their personality.
2. We have no criticisms to make about the organisation of the judicial system, as briefly described. We consider that the limited term of office of the judges is not such as to jeopardise their independence. The composition of the High Council of Justice and the difficulty of replacing judges, which leads to the almost automatic renewal of terms of office, seem to offer sufficient safeguards in this connection.
It should also be noted that the State assumes liability for injury resulting from judicial error or miscarriage of justice.
In the Constitution, the Constitutional Court is treated separately from the judicial system. It is composed of four judges of whom one is appointed by each Co-Prince and two by the Consell General. Their term of office is eight years and is not immediately renewable.
It is the competent organ for appeals against laws on the grounds of unconstitutionality, requests for preliminary opinion as to the conformity of laws and international treaties with the Constitution, constitutional protection procedures (empara appeals), and conflicts of jurisdiction between public authorities. Interlocutory questions are also addressed to it by the courts.
The remedy of empara has deliberately been restricted to acts by the public authorities that impair fundamental rights so as to guard against the Constitutional Court becoming bogged down with appeals, which might have the effect of increasing the length of proceedings. The Andorran Constituent Assembly thus drew lessons from Spanish experience of the remedy of amparo."
21. In the Drozd and Janousek judgment the Court described Andorra's international status as follows (pp. 21-23, paras. 67-74):
"67. The status in public international law of the Principality of Andorra is striking by its originality and ambiguity, so much so that it is often regarded as an entity sui generis.
The practice followed in recent years suggests that there is now agreement between the Co-Princes to regard themselves as equals in the conduct of Andorra's international relations. Andorra has entered into a number of bilateral and multilateral relations in this field.
A. Bilateral relations
1. Relations with France
68. Relations between Andorra and France do not fit into the pattern of relations between sovereign States. They have never taken the form of international agreements, as the French Co-Prince is the President of the French Republic and the French Government have always refused to recognise the Principality's statehood. Such relations take a number of forms: unilateral French acts, such as the establishment of French schools; administrative arrangements, such as those dealing with social security, telephone networks and customs regimes; de facto relationships, sometimes deriving from custom (this is the case with the enforcement of certain sentences outside Andorra - see paragraphs 55-62 above), sometimes based on administrative or judicial practice (decisions of the Andorran courts have the status of res judicata in France and do not require an exequatur for enforcement).
The French Government also place a unit of police (gendarmerie) at the disposal of Andorra.
Finally, France does not have a consulate in the Principality. French nationals in Andorra are dealt with by the prefecture of the Pyrénées-Orientales department.
2. Relations with Spain
69. Relations between Andorra and Spain follow a similar pattern. They feature unilateral Spanish acts, such as the Royal Decree of 10 October 1922 regulating trade between the Principality and the Kingdom of Spain, and bilateral arrangements such as the agreements of an administrative type relating to social security. The Spanish Government also make certain facilities available to the Mitre. Thus a unit of the guardia civil is stationed in Andorra: the members of this unit are no longer responsible to their original administrative department and the episcopal veguer can effectively veto their appointment or presence in Andorra; the Spanish authorities are responsible for their pay, while the costs of equipment and operational expenditure in respect of administrative and in particular consular functions are borne by the Andorran budget. There is no Spanish consulate in Andorra. The episcopal veguer acts as de facto consul for Spanish citizens.
3. Relations with States other than France and Spain
70. Andorra does not maintain diplomatic relations with any other State. On the other hand, it has entered into consular relations with the following eight countries: Argentina, Belgium, Germany, Italy, Switzerland, the United Kingdom, the United States of America and Venezuela. It does not have its own consular representation, however, and its nationals are protected by the French and Spanish authorities in this respect.
B. Multilateral relations
1. International organisations
71. Andorra is not a member of any intergovernmental international organisation. On 15-18 October 1990 the Committee of Ministers of the Council of Europe `asked the Secretary General to contact the two Co-Princes to define the areas suitable for co-operation between the Council of Europe and the Principality of Andorra'. In so doing it was giving an `interim response' to Recommendation 1127 (1990) on the Principality of Andorra, adopted by the Consultative Assembly of the Council of Europe on 11 May 1990.
2. International agreements
72. Andorra has acceded to two international agreements, the Universal Copyright Convention (Geneva, 1952) and the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, 1954).
3. International conferences
73. Since the Universal Copyright Conference (Geneva, 1952) Andorra has regularly taken part in meetings of UNESCO. It has also sent delegations to three conferences: the conference on the protection of cultural property in the event of armed conflict (The Hague, 1954), the conference to revise the Universal Copyright Convention (Paris, 1971), and the conference on the protection of phonographic recordings (Geneva, 1971). Since 1973, on the order of the Co-Princes, the Principality's representatives at these conferences have been appointed by the veguers jointly. Four members of the General Council of the Valleys now accompany the said representatives; the Head of Government is the spokesman of the delegation.
4. The European Communities
74. For some decades Andorra was not part of the Communities' customs territory. On 20 March 1989 the Council of the European Communities adopted a directive inviting the (Brussels) Commission to negotiate an agreement with Andorra with a view to creating a customs union for industrial products. The agreement in question came into being on 28 June 1990 in the form of an exchange of letters, and entered into force on 1 January 1991. The Principality's letter was signed by the representatives of the Co-Princes and by the Head of Government."
22. Since then Andorra's international status has undergone sweeping changes. The Constitution of 4 May 1993 defines Andorra as "an independent, democratic and social State based on the rule of law" (Article 1 para. 1). The Principality became a member of the United Nations Organisation on 28 July 1993 and of the International Telecommunications Union on 12 November 1993. On 10 November 1994 it joined the Council of Europe and signed the European Convention on Human Rights.
A treaty on "neighbourly relations, friendship and co-operation between the French Republic, the Kingdom of Spain and the Principality of Andorra" was signed on 1 June 1993 by the French and Spanish Ministers for Foreign Affairs and on 3 June by Andorra's Head of Government. In this treaty France and Spain recognised Andorra as a sovereign State, established diplomatic relations with the country and undertook to facilitate its participation in international conferences and organisations and its accession to conventions.
Although Andorra retains some special features - in particular the institution of the Co-Princes - there is no doubt that, whatever the position may have been hitherto, it is now a "State" for the purposes of public international law.
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-61538
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF KRONE VERLAG GmbH & Co. KG (No. 3) v. AUSTRIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 9. Krone Verlag GmbH & Co. KG, a limited liability company with its registered office in Vienna, is the owner of the daily newspaper Neue Kronenzeitung published by Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG (“the publisher”).
10. On 9 and 11 December 1994 the Salzburg edition of the Neue Kronenzeitung published an advertisement for subscriptions to the newspaper in which it compared its monthly subscription rates with those of another regional newspaper, the Salzburger Nachrichten. According to the advertisement, the Neue Kronenzeitung was “the best” local newspaper.
11. On 13 December 1994 the Salzburger Nachrichten applied to the Salzburg Regional Court (Landesgericht) for a preliminary injunction (einstweilige Verfügung) under sections 1 and 2 of the Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb) against the applicant company and the publisher. It requested that the applicant company and the publisher be ordered to refrain from publishing the advertisement.
12. On 29 December 1994 the Salzburg Regional Court issued a preliminary injunction against the applicant company and the publisher to preserve the status quo during the proceedings. On appeal by the applicant company and the publisher, the Linz Court of Appeal (Oberlandesgericht) quashed the Regional Court's decision. The court stated, inter alia, that the two newspapers were competitors in the same market and for the same readership. On 23 May 1995 the Supreme Court (Oberster Gerichtshof), on appeal by the Salzburger Nachrichten, issued a preliminary injunction. The court found that the advertisement was misleading. It considered that the Salzburger Nachrichten was a “quality newspaper” and the Neue Kronenzeitung was not, and that this difference was not necessarily known to readersNeue Kronenzeitung “the best” local newspaper amounted to disparagement of the Salzburger Nachrichten.
13. In the main proceedings which followed, the Salzburg Regional Court ordered the applicant company and the publisher to refrain from publishing the advertisement as long as it did not provide at the same time information which made it possible to avoid any generally pejorative value statement or any other risk of misleading readers. Secondly, it ordered them not to refer to the sales price of the Salzburger Nachrichten as “expensive”. Thirdly, it ordered them to refrain from comparing the sales prices of the two newspapers unless they indicated at the same time the differences in their respective reporting styles, in particular as regards coverage of foreign or domestic politics, economy, culture, science, health, environmental issues and law, and referred also to the Neue Kronenzeitung as an entertainment-orientated communications medium and the Salzburger Nachrichten as a medium mainly geared to information. Lastly, it ordered them to publish the decision.
14. On 21 March 1997 the Linz Court of Appeal, allowing in part an appeal by the applicant company and the publisher, confined the third branch of the injunction to the order that the applicant company and the publisher refrain from comparing the sales prices of the two newspapers without indicating the differences in their reporting styles as regards coverage of foreign or domestic politics, economy, culture, science, health, environmental issues and law. It confirmed the lower court's decision as to the remaining branches of the injunction. The court considered that it was a matter of common knowledge that both newspapers were competing in the same market. As to the differences in quality between the newspapers and the argument that readers were not familiar with these differences, the Linz Court of Appeal referred to the Supreme Court's decision of 23 May 1995.
15. On 28 April 1997 the applicant company and the publisher lodged an appeal on points of law against this decision, relying on Article 10 of the Convention.
16. On 13 May 1997 the Supreme Court declared their appeal on points of law inadmissible. The decision was served on the parties on 16 June 1997.
17. The relevant sections of the Unfair Competition Act read as follows:
Section 1
“Any person who in the course of business commits, for purposes of competition, acts contrary to honest practices, may be ordered to desist from further engaging in those acts and held liable for damages.
Section 2
Any person who in the course of business, for purposes of competition, makes declarations that could be misleading about commercial conditions, especially on the quality, origin, method of production or calculation of the prices of single goods or services or the whole stock, on price-lists, about the manner and sources of supply, about the possession of awards, about the occasion or purpose of the sale or about the quantity of the stock, may be ordered to desist from further making those declarations and, if he knew or must have known that they were likely to mislead, held liable for damages. However, comparing prices in advertisements is authorised, if it is not contrary to this section or section 1.”
VIOLATED_ARTICLES: 10


ITEMID: 001-82843
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: KHIVRENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Nikolay Leonidovich Khivrenko, is a Ukrainian national who was born in 1950 and lives in the town of Alushta. The Ukrainian Government (“the Government”) were represented by their Agents, Mr Y. Zaitsev and Mrs V. Lutkovska.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 3 June 1997 Mr T., a businessman, was kidnapped by a group of persons when he was approaching his hotel after his morning jogging. Shortly afterwards, the police was informed about his disappearance. Mr T.’s business partners received a number of phone calls from the kidnappers, demanding a ransom and explaining the manner in which the money should be paid. Some of the telephone conversations were intercepted by the police. The police also recordered telephone conversations between the kidnappers. The interception was authorised by the President of the Kyiv City Court on 3 June 1997.
On 14 June 1997 the applicant and six other persons were apprehended on suspicion of forcible abduction of Mr T. On 17 June 1997 they were charged with aggravated extortion.
On 29 August 1997 the investigators ordered an expert examination of the audio recordings of the telephone conversations made in June 1997. The investigators also took samples of the voices of the applicant and other accused and provided the expert with these samples.
On 1 December 1997 the examination was completed. The expert concluded that one of the voices on the recordings belonged to the applicant.
On 28 January 1998 the applicant familiarised himself with the expert’s conclusions.
In May 1999 the investigations were completed and the case was referred to the Moskovskyy District Court of Kyiv for trial. The investigators also submitted a list of persons, the accused and twenty-two witnesses, to be summoned by the court. The applicant and his lawyer took part in the court proceedings.
In the course of these proceedings eight witnesses, including one of the investigators, were heard in person. One of those witnesses, Mr S., stated that on 2 June 1997 he had met the applicant and Mr B., whom he had known before, at the hotel where Mr T., the victim, had stayed. Mr B. had asked Mr S. if the latter knew the place where the hotel clients were jogging. Mr S. had given him relevant explanations. On 3 June 1997 Mr S., upon the victim’s business partners’ request, had met with the applicant and Mr B. in order to find out whether the latter knew about the victim’s whereabouts. He had received an affirmative answer from Mr B., the applicant having been present at that meeting but having not participated in the conversation. Thereafter, Mr S. had had several telephone conversations with Mr B., discussing the conditions of the victim’s release.
Another witness, Mrs V., informed the court that since May 1997 the applicant had resided in her flat in Kyiv and that her mother, Mrs K., had given the keys to her summer house to one of the applicant’s co-defendants. As it was later established in the course of the investigations and trial, the victim had been held in that summer house.
While the investigator heard by the court as a witness submitted that the defendants had fully enjoyed their procedural rights and that they had had access to all the materials contained in the case-file, the remaining witnesses made statements relating to some of the applicant’s co-defendants’ activities at the material time.
The court decided to admit and examine the written statements of fourteen other witnesses obtained at the stage of the pre-trial investigation, after having accepted the reasons for their non-appearance before the court. As far as can be determined from the contents of the court records, the police, who had been ordered to bring the witnesses before the court, informed the court that five of those witnesses resided abroad and that four other witnesses could not advance the money for travelling. The reasons for the non-appearance of other five witnesses remained unclear.
The co-defendants’ lawyers objected to the admission of the written statements of some of those witnesses and insisted on their appearance at the court hearing. The applicant’s lawyer seconded her colleagues’ objections.
In her written submissions, one of the witnesses, Mrs K., had informed the investigators that in May 1997 she had given the keys to her summer house to the applicant, who had intended to use it for the storage of goods.
The other written statements examined by the court concerned the victim, his relations with business partners, and the activities of some of the applicant’s co-defendants.
Although at the stage of pre-trial investigation some of the applicant’s co-accused had confirmed that he had organised the abduction of Mr T. upon the request of Mr M. and Mrs M., they all withdrew their initial statements at the trial stage. Nonetheless, the court admitted their statements made at the pre-trial stage, as well as their later submissions.
The applicant denied his responsibility for the crime of which he had been accused. He also submitted that the statements of Mrs K. and his coaccused made at the pre-trial stage were untrue.
In the course of the trial the court also examined the transcripts of the recordings of the telephone conversations made in June 1997 and the expert’s conclusion of 1 December 1997.
On 17 January 2000 the applicant together with his co-defendants were found guilty of aggravated extortion. The applicant was sentenced to ten years’ imprisonment with confiscation of his property.
In its judgment, the court made the following findings concerning the applicant’s guilt:
“...
In addition ... the leading role of [Mr] Khivrenko in committing extortion ... is [confirmed] by the evidence collected in the course of ... the interception of telecommunications which had been carried out on the basis of the warrant issued by the President of the Kyiv City Court ... on 3 June 1997.
It was established in the court hearing that, given the audio recordings ..., [Mr] Khivrenko had had telephone conversations with [Messrs B. and Y., his co-defendants, and Ms A., a witness], and other persons with the aim of extorting individual property of the victim...”
The lawyers, representing the applicant and his co-defendants, appealed in cassation, alleging that the first instance court had wrongfully assessed evidence and applied law in the case. They argued, inter alia, that the court had failed to summon the witnesses, Mr M. and Mrs M., whose written statements had been admitted to the case-file and who had allegedly ordered the victim’s abduction; that the court had not allowed the defendants to familiarise themselves with the audio recordings of the telephone conversations made in June 1997; and that the court had failed to re-qualify the acts of the defendants who had allegedly abducted the victim in order to ensure his compliance with financial obligations in respect of a third party. On the whole, according to the defence lawyers, the conviction was not based on any reliable evidence.
The applicant’s lawyer lodged an amendment to the above appeal, reiterating that neither he nor the applicant had been able to familiarise themselves with the audio recordings of the telephone conversations made in June 1997. The lawyer also submitted that the court had failed to take into account the fact that there had been procedural irregularities in the course of the pre-trial investigation in that the applicant had not been provided with assistance by a lawyer at his first interrogation. Finally, the lawyer contested the trustworthiness of the statements of the witness Mrs K.
On 3 August 2000 the Kyiv City Court upheld the judgment of the first instance court. The city court found that the judgment had been wellfounded and that there had been no procedural irregularities at the stage of the investigation or trial.
On 17 September 2002 the applicant was conditionally released from serving his sentence.
Pursuant to Article 48 of the Code of Criminal Procedure (the Code), as worded at the material time, the procedural rights of the defence lawyer included the rights to meet with the suspected or the accused; to be present at their interrogation; to be present during the investigative procedures in which the suspected or the accused took part or which were initiated by them; to take part in other investigative procedures subject to the consent of the person conducting an inquiry or the investigator; to familiarise himself with the case-file following the completion of the pre-trial investigations and to make notes; to participate in the trial; to collect evidence; to get the expert’s written conclusions concerning the issues the examination of which required special knowledge; to submit evidence and to lodge motions.
The defence lawyer should be informed in advance about the date and place of the investigative procedures which he requested or in which the suspected or the accused took part.
During an investigative procedure the defence lawyer had the right to put questions to the persons who were interrogated and to submit written remarks concerning the accuracy of the notes taken by the investigator.
According to Article 255, the procedural rights of the defendant included the right to challenge the persons participating in the trial; to lodge motions and to express his opinion concerning the motions of other persons participating in the trial; to request the court to include documents into the case-file, to summon witnesses, to order expert examination; to testify or to refuse to give evidence or answer questions; to put questions to other defendants, witnesses, expert, specialist, victim, and civil party; to participate in the examination of material evidence etc.
Article 266 entitles the defence lawyer to participate in the examination of evidence by the court; to lodge motions concerning the admission of new evidence; to express his opinion on the meaning of the evidence examined in the course of the proceedings etc.
According to Article 62, the suspected, the accused or their lawyer could request the withdrawal of an expert. The expert should withdraw from the case if he was a victim, civil party or their relative, or a relative of the investigator, the person conducting an inquiry, the prosecutor or the defendant; if he had already participated in the proceedings as a witness, defence lawyer, victim’s or civil party’s representative, person conducting an inquiry, investigator, prosecutor, or if he had already considered procedural complaints in the case as a judge; if he was he was personally interested, directly or indirectly, in the outcome of the proceedings; if there were other reasons for which his impartiality could be called into question.
Article 197 of the Code provided that at the time when an expert examination was ordered or was being carried out the accused enjoyed the following rights:
to challenge an expert;
to request the appointment of an expert from a list of persons submitted by the accused;
to request additional questions to be put to the expert;
to give explanations to the expert;
to submit additional documents;
to familiarise himself with the expert’s materials and conclusions after the completion of the expert examination;
to request a new or additional expert examination.
The investigator was obliged to provide the accused with a possibility to familiarise himself with the order for an expert examination and to explain him the rights listed in this Article.
Article 200 of the Code stipulated that upon the completion of the examination the expert had to draw up a report containing the information concerning his name and professional qualification; grounds for the examination; questions put to him and answers to these questions; materials used in the course of the examination; studies carried out etc.
Under Article 202, the investigator was obliged to provide the accused with a possibility to familiarise himself with the materials of the expert examination and to note the explanations, remarks and objections which the accused raised, as well as the latter’s requests.
If a witness or an expert failed to appear before the court, Article 292 obliges it to consult the parties before deciding whether the proceedings could continue.
In exceptional cases the court could release a witness, who was subject to special measures of protection, from his obligation to appear before it, provided the witness had confirmed in writing his earlier statements.
Pursuant to Article 306, the court could, on its own initiative or upon the prosecutor’s or other party’s motion, read out the witness’ statements obtained at the stage of inquiry, pre-trial investigation or trial, if
the statements made at the trial and in the course of the investigation or inquiry substantially contradicted each other;
the witness’ presence at the hearing was, for some reason, impossible;
the case was heard in the witness’ absence pursuant to Article 292 of the Code.
Under Article 312 the court had powers to order a new or additional expert examination. In such a case the proceedings could be suspended.
Article 313 stipulated that material evidence had to be observed by the court and the parties were to be given an opportunity to examine them. The pieces of evidence, which could not be brought into the court hearing, could be observed on spot.
According to Article 323, the judgment had to be based on the evidence examined at the court hearing.


ITEMID: 001-72314
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: TRUSOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Anatoliy Ermolayevich Trusov, is a Russian national, who was born in 1933 and lives in the city of Dukhovshchina, Smolensk region. The respondent Government are represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant claimed that during the World War II he had been detained in a German concentration camp. By a Presidential Decree of 15 October 1992, former prisoners of German concentration camps became entitled to certain social benefits, in particular, to a supplement to their retirement pension. On 1 October 1994 a special municipal commission (“the commission”) granted the applicant the pension supplement on this ground.
On 11 April 2000 the commission revoked its decision of 1 October 1994, referring to the lack of evidence that the applicant in fact had been in a concentration camp, and, thus, had indeed been entitled to the supplement.
On 7 July the commission decided to withhold 20 percent of the applicant’s retirement pension to cover the sums wrongly paid to him between 1994 and 2000. As a result, according to the respondent Government, between August 2000 and March 2001 the commission withheld from the applicant’s pension 1,122.35 Russian Roubles to compensate for the previous erroneous payments.
The applicant brought a civil action against the commission seeking restoration of the supplement, recovery of the sums withheld, and compensation for damage.
On 22 December 2000 the Dukovschinskiy District Court of the Smolensk Region found in the applicant’s favour, holding that the retirement pension was the applicant’s “possession”. According to Article 35 § 3 of the Russian Constitution, no one could be deprived of his possession otherwise than by a court decision. Therefore, the deduction of the 20 percent from his pension by an administrative decision had been unlawful. The district court also noted that the commission had failed to hear the applicant and witnesses, and to obtain an expert opinion. Finally, the court found that no legal procedure existed to revoke the supplement once granted. The court quashed the decision of 11 April 2000 ordering the commission to return to the applicant the money deducted from his pension and to resume paying him the supplement.
The defendant appealed. On 27 February 2001 the Smolensk Regional Court delivered a new judgment on the merits. Firstly, the Regional Court found that the decision to revoke the supplement had been “well-founded”. The Court further stated that, on the other hand, the money paid in excess could be deducted from the retirement pension only in case of an abuse by the pensioner, which was not the case. The court found that the deduction from the applicant’s pension had been unlawful.
In the operative part of the judgement the Regional Court quashed the decision of 1994, confirming that the applicant was no longer entitled to receive the supplement. The Regional Court also held that no deduction could be made from the applicant’s pension. However, the Court did not order, at least explicitly, the reimbursement of the sum withheld between August 2000 and March 2001.
As follows from the Government’s submissions, pursuant to the decision of 27 February 2001 the money withheld was returned to the applicant. Thus, on 23 March 2001 the local Commission on State pensions decided to return to the applicant 206.57 Russian Roubles (protocol of the deliberations of the Commission no. 30). On 21 September 2001 the commission decided to return to the applicant the remaining of the sum withheld, namely 915.78 Roubles (protocol of the deliberations no. 92). Those amounts were transferred to the applicant in April and October 2001 respectively. The applicant did not contest these facts.