Andorra

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Background

Andorra is a small and landlocked independent European co-principality, bordered by France to the north and east and by Spain to the south and west. Alongside the region’s traditionally strong affinity with the region of Catalonia in northern Spain, Andorra’s official language is Catalan, its institutions are based in Catalonian law, and a large proportion of Spanish immigrants and their descendants in Andorra are Catalan.

The country's dual allegiance to two princes - one Spanish and one French - originates in a proprietary quarrel between the Spanish bishops of Urgel and the French heirs to the countship of Urgel. Andorra was subsequently governed jointly by representatives of the Spanish bishop of Urgel and of the French head of state (the President of France), each of whom received an annual payment of a token tribute.

After the 1993 referendum which established a new constitution, the politics of Andorra have taken place in a framework of a parliamentary representative democracy with a unicameral legislature and a multi-party system. The prime minister is the chief executive. Andorra subsequently joined the United Nations (1993) and the Council of Europe (1994).

Though not a member of the European Union, Andorra has used the euro as its de facto primary currency since 2002 and entered into a monetary agreement with the EU that made the euro its official currency.

The Legal system

Andorra has a hybrid legal system: the system is fundamentally customary and supplemented by legislation.

Legislation: The legislature is the Consell General (‘General Council’). The gazette in which legislation (including decrees) are published is called Butlletí Oficial del Principat d’Andorra (‘Official Bulletin of the Principality of Andorra’).

Customary: Historical or material sources of customary law include canon law, Castillian law, Catalan law, French law and Roman law.

Court Structure:

• Batllia (‘Court of Batlles’) - judges minor criminal offenses as well as civil and administrative litigation at first instance
  
• Tribunal de Corts (‘Court of Courts’) - judges major criminal offenses and appeals from the Batllia
  
• Tribunal Superior de Justícia (‘Supreme Court of Andorra’) - comprises a President and eight magistrates appointed by the Supreme Council of Justice with jurisdiction over all three main areas of law.
  
• Ministeri Fiscal (Fiscal Ministry) - acts as the ministry of public prosecutions and ensures the “defense and application of the legal order”.

Legal Aid

The legal aid budget is 6.31€ per inhabitant.

Legal aid is provided by the state when the particular party is unable to afford it.

Article 10(3) of the Constitution states: “In order to guarantee the principle of equality, the law shall regulate the cases when justice shall be free of cost”

Article 12 of the Criminal Procedure Code 2008 states: “Official defence is free of charge only for those people that prove their poverty situation or insolvency, declared by a court.”

There are 267 attorneys per 100,000 residents

Source of Defendants Rights

National Sources of Defendant’s rights: Articles 4-35 of the Constitution lay out the rights and freedoms afforded to Andorran nationals

International Sources of defendant’s rights:
Article 5 of the Constitution enshrines the Universal Declaration of Human Rights in domestic law.
As a UN Member State, Andorra is subject to the oversight of various UN human rights bodies, including the Human Rights Council and its Universal Periodic Review and thematic special procedures. As a party to specific universal human rights treaties, Andorra’s policies and practices are monitored by UN treaty bodies. Andorra has ratified the following UN human rights treaties:

• International Covenant on Civil and Political Rights (ICCPR)
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
• Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
• Convention on the Rights of Persons with Disabilities (CRPD)
• Convention on the Rights of the Child (CRC)
• International Convention on the Elimination of All Forms of Racial Discrimination (CERD)

Rights of the Accused

Right Against Unlawful Arrests, Searches and Seizures: Warrants are required for an arrest

Right Against Unlawful Detention: "Police legally may detain persons for 48 hours without charging them with a crime, and police generally observed this time limit in practice.” After which point, the right to be brought before a judge is constitutionally binding. Moreover, there is a procedure in place for a detainee to request the court to decide the lawfulness of their detention, and remedy their rights should the court decide they were falsely detained.

Right Not to be Tortured or Ill-Treated: Those accused can bring about human rights lawsuits should they face a human rights violation, including torture or ill-treatment, while accused. This is in line with Article 8 of the Andorran constitution which “recognises the right to life and protection thereof, forbids torture and other cruel, inhuman or degrading punishments and explicitly forbids the death penalty.” The Human Rights Practices Country Report of 2022 found that there were no reports of torture or ill-treatment employed by government officials.xv Indeed, historically the Report to the Andorran Government on the visit to Andorra carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment found that anyone accused in Andorra would “run little risk of being ill-treated” in 1998

Right to Medical Care: Article 24 of the Andorran Criminal Code highlights that the notification of custody document given to all detainees will also express their rights and reasons for detention: These include: a right to immediately notify a third party; access to legal counsel (either of your own choosing or through government-provided support); and access to medical care (from forensic doctors for free or an individual’s own doctor at their expense)

Right to be Informed of Charges: The right to be informed of charges is a constitutional right in Andorra. The notification of charges and custody documents are provided in multiple languages (including: Catalan, Catalan-Spanish, Catalan-French and Catalan-English)

Right to Presumption of Innocence: The right to Presumption of innocence is a constitutional right in Andorra.

Right Against Self-Incrimination: The right against self-incrimination is a constitutional right in Andorra.

Right to Counsel and Effective Assistance: Article 10 of the constitution states that: “All persons shall have the right to counsel and the technical assistance of a competent lawyer, to trial within a reasonable time.” Unconstitutional for detainees to not have access to lawyers for long periods (24 hours as was previous practice).There is access to both choosing your own lawyer or using one provided by the authorities which comes at the moment of an individual’s arrest. Since 2014, Andorra benefitted from the Judicial Assistance and Mediation Service which provides free, individualised legal advice to the accused.

Right to Due Process: The right to due process is a constitutional right in Andorra.

Right to Equal Protection of the Laws: “All persons are equal before the law. No one may be discriminated against on grounds of birth, race, sex, origin, religion, opinions or any other personal or social condition.”

Right to Bail: There are bail procedures in place.

Right Against Ex Post Facto Prosecution: No one shall be held criminally or administratively liable on account of any acts or omissions which were lawful at the time when they were committed.

Right Against Double Jeopardy: Judgments, once final, have the value of res judicata and may not be modified or quashed except in the cases provided for by the law or when, in exceptional cases, the Tribunal Constitucional, after the corresponding process of Constitutional appeal, decides that they were rendered in violation of certain fundamental rights.

Right to a Fair Trial:

• Generally: “All persons shall have the right to jurisdiction and to have a ruling founded in the law, and to a due trial before an impartial tribunal established by law.”
• Right to a Trial by Jury: Trials are public, and defendants can request a jury.
• Right to a Speedy Trial: “All persons shall have the right […] to trial within a reasonable time” Provisional detention before a trial must not exceed four months, though a judge can extend this period with good reason, as long as the duration of detention is less than half of the maximum penalty of the offense ordered. The Andorran Country Report on Human Rights Practices for 2022, defined the pace of their justice system as “slow” due to a lack of human resources, with the average pre-trial detention period being 498 days - significantly beyond the legally stipulated period.
• Right to an Impartial Judge: All persons shall have the right to jurisdiction and to have a ruling founded in the law, and to a due trial before an impartial tribunal established by law.

Right to Language Interpretation: If the defendant does not understand the language in which he is being questioned, the bailiff must ask for an interpreter, to whom he must take an oath in legal form, so that he faithfully fulfils his mission.

Right to Habeas Corpus: All persons have the right to liberty and security and shall only be deprived of them on such grounds and in accordance with such procedures as are established in the Constitution and the laws. Executive detention shall take no longer than the time needed to carry out the enquiries in relation to the clarification of the case, and in all cases the detained shall be brought before the judge within 48 hours. The law shall establish a procedure so that the detained may request the court to decide about the lawfulness of the detention. Likewise the law shall establish the procedure to restore the impaired fundamental rights of any person under detention.

Capital Punishment: "The death penalty is prohibited"

Right to Appeal: “All persons shall have the right […] to appeal in criminal causes”

Rights of Counsel

When representing a client charged and detained with a crime, Counsel have the right to meet privately with them for a period of up to 30 minutes, as well as attend any client interrogations. During interrogations, they also have the right to intervene to protect and advise their client.

Legal Counsel has access to all relevant information. At the point of trial, counsel are given a minimum warning of 15 days before proceedings begin to prepare any evidence to support their case.

Means of Protecting and Enforcing Rights

Exclusionary Rule:

No evidence obtained, directly or indirectly, in violation of fundamental rights or freedoms is effective.

Nullity of Procedure:

The court may agree to the definitive/provisional dismissal of a case: in either total or partial form.

Dismissal is final when:

It is clear that the crime has not been committed

When the proven fact does not constitute crime

When those prosecuted appear exempt from criminal liability

Dismissal is provisional when:

The summary procedure does not provide enough evidence to demonstrate a crime being committed

After verifying the criminal act, there is no indication of who the perpetrators, accomplices, or accessories after the fact.

When, after the crime has been committed, the defendant’s dementia or a serious health condition prevents them from appearing and exercising their right of defence, until his health is recovered.

The final judgment is irrevocable and leaves the judgement firmly closed.
The provisional dismissal leaves the summary proceedings open until the appearance of new information or proof, except in the case of prescription.
In the case of temporary suspension or termination of the criminal action due to the death of the defendant, the goods/money acquired via the criminal act may be confiscated according to Article 70 of the Code of Criminal Procedure. For this reason, the proceedings must continue with heirs/legal representatives of the defendant, who are civilly responsible with regard to the goods subject to confiscation, unless they renounce ownership.
If the Public Prosecutor's Office requests dismissal and there has been no establishment of a private prosecution, the court must agree that the public prosecutor's claim be made known to the people who may be interested in pursuing the criminal action so that within the period of 15 days they can exercise it if they consider it appropriate; if they do not, the court agrees to the dismissal
In the event that there is already an action in private accusation, or an action pursued in the merits of what is provided in the previous paragraph, the term of 15 days must be given to formulate the letter requesting the opening of the trial orally and in the same written form formulate the provisional qualification of the facts and propose the evidence that he intends to rely on. The lack of presentation within the mentioned term leads to the withdrawal of the criminal action and the civil action in the criminal process.

Civil Actions:
Plaintiffs may bring lawsuits seeking damages for, or cessation of, a human rights violation. Individuals and organisations may appeal domestic decisions to the European Court of Human Rights (ECHR). The national ombudsman serves to protect and defend basic rights and public freedom on behalf of citizens.
The Civil Procedure Code provides for two classes of procedures: ordinary and abbreviated. The law also regulates other special procedures, such as injunctions, summary guardianship, leases, employment, family or modification of capacity, and affects the common rules for related processes to the person and the family.

Ordinary: Ordinary procedure is the standard procedure for substantiating matters of an amount equal to/greater than 20000€, those of an undetermined amount and those that have not been designated a special procedure. Structured with a written phase which begins with a demand, followed by the notification and the answer, a preliminary hearing, and an oral trial

Abbreviated: A procedure determined by reason of the matter or the amount for processes governed by special procedure, those without a specific procedure, and claims of up to 20000€. The procedure begins with a phase of written allegations, an oral trial, and a sentence - which is subject to appeal if the claim amounts to more than 1.500€

Pre-Trial Procedure

Police procedures

Arrest, Search and Seizure Laws: The police are obliged to arrest those who try to commit a crime; criminals caught in an act of criminality; those who escape prison; and those they reasonably believe responsible for a crime. Formal search warrants must be granted by a magistrate, and there should be an attending court clerk who is responsible for listing any goods appropriated during a warrant (unless there is an urgent reason why this cannot occur) at a crime scene or place of arrest, overseeing the search. All persons of interest should be questioned but cannot be searched without prior consent unless the court has authorized their search. Based on this, the use of firearms at the point of arrest in Andorra is only lawful should there be a threat of imminent danger or life.

Interrogation: The use of interrogation rooms was recommended by the CPT committee in 2011 and have been used since. This allows for interrogations to be recorded, with tapes being held for a period of up to four months.xlix Should a defendant need an interpreter the Andorran Justice Administration must provide them with one free of charge to the defendant in any interrogation.l

Court Procedures

Pre-Trial: Criminal action can only be brought through a written complaint, subject to certain procedural requirements outlined in the Article. Once the complaint is filed, it can be admitted/rejected depending on whether the facts may or may not constitute a crime.
When factual elements in the certificate, complaint, or dispute cannot determine the nature or circumstances of the crime, the people who participated, or the appropriate procedure, the court must initiate preliminary proceedings and report to the Fiscal Ministry - this must be carried out in a swift manner. This process is not necessary if it is perfectly clear or unclear that the facts constitute a crime.
Criminal offenses are tried by the Unipersonal Court of the Batlle. Those summoned to court are warned at least 15 days in advance. The trial is public and begins with the reading of the complaint or grounds. The defendant’s previous convictions, personality, and medical/psychiatric state are all taken into account. The court informs the defendant of their rights, and the defendant has an obligation to mention or ratify the appointment of a lawyer - otherwise, the lawyer on duty acts. The statement is taken with the lawyer in attendance.
The court can summon any person as a witness, whether a citizen or a foreigner. If the witness refuses to appear or testify, this may constitute a criminal offense.
One or two qualified experts may be appointed in cases where scientific or artistic knowledge is required. The battle must strive to collect all the right elements to be able to establish, if applicable, the imputability of the crime to the accused and to determine guilt or innocence. When the proceedings result in some rational indication of criminality against a certain person, a warrant of prosecution must be issued. The prosecutor then has the option to either request the opening of the oral trial or to dismiss the case.

Oral Trial: Trials are public, the defendant will be present and able to request a jury. Core aspects of the process:

• The defendant is invited to explain themselves regarding the facts they are accused of
• Witnesses must appear or testify. Expert evidence is admitted by the court if it can contribute to clarification of the facts. The trial is concluded by the President if parties do not want to modify their provisional conclusions

Sentencing: Andorran sentencing procedure is found in chapters three and four of their penal code. Perpetrators of any completed offense will be sentenced to the full penalty of their complete offense as is provided in law (Article 52), unless they were provoked, in which case, their sentence is reduced (Article 54). Attempted crimes also have reduced sentences (Article 54).
The minimum custodial sentence in Andorra is three months. Should a perpetrator be sentenced for a crime in which the prison sentence amounts to a period of less than three months, they will instead serve a non-custodial sentence (Article 55).
Perpetrators will serve simultaneous sentences for a single offense, and successive sentences should they have committed several offenses - as long as the successive sum does not exceed 25 years (or 30 should one of the crimes committed have a maximum sentence of 20 years attached to it). (Article 58).

Appeals:

• Appeals against the resolutions of the battles in the pretrial stage: Pertains to appeals against the various resolutions that the court makes in the pre-trial stage (e.g., agreeing to find proceedings, denying prosecution, etc.). Appeals must be lodged before the President of the Court of Appeals within five days of the notification of the relevant decision.
• Appeals against the resolutions of the tribunal in the oral trial: The appeal is decided by the Court of Appeal

The appeal is decided by the Court of Appeal and needs to be filed to the prosecutor's office (Fiscal Ministry) within 15 days. The hearing is in public but for an exception granted by the court. Deliberations of the court are secret, and a resolution is adopted by a majority. The Court cannot aggravate an appealed decision unless it was the appellants' express request.

Rights in Prison

Right to Humane Conditions of Confinement: The La Comella Prison Centre in Andorra de Vella is the only prison in Andorra. It is a purpose-built building that opened in 2005 with an official capacity of 123. The right to privacy of detainees is upheld with solid doors to cells and the option to be confined individually or with someone else. During winter months, detainees have outdoor recreational access for four hours daily, which is increased by an hour during summer. As well as indoor common rooms, equipped with board games and books. There is an activities coordinator at the prison who hosts well-attended sessions in various areas.
Employment opportunities are paid and come mostly from assistance in general prison services, as well as from external contracts for prisoners to work for companies to expand revenues of income generation. La Comella prison also offers educational opportunities, employing a full-time, on-site teacher. There is virtual access to virtual higher education platforms available for prisoners to continue their education.
Visitations can occur in both open environments and those in closed visiting rooms. Since there is only one prison in Andorra, families who live far away from the prison can contact their incarcerated loved one via Skype conferencing.

Right to Medical Care in Prison: La Comella Prison Centre has an infirmary and since 2015, the Andorran Health Care Service has held responsibility for the health of prisoners. There are attending doctors as well as a nursing team, who are available on-call should there be an emergency outside of working hours. Should prisoners require specialized care, they are transferred to the Nostra Senyora Hospital where there are two secure rooms which can be guarded by prison personnel. Additionally, the hospital’s addiction treatment services are made available to prisoners suffering from addictions - including the administration of methadone.

Right to Mental Health Care: La Comella Prison has an attending psychiatrist and psychologist, however, it is recommended by the CPD that their hours be doubled to meet the needs of every prisoner requiring mental health support.

Restriction of rights: Sanctioned prisoners have the right to appeal this in court. Sanctions range in severity and include:

• Solitary confinement (which was used six times in 2017, for no period exceeding seven days - the law restricts this period to 14 days);
• Visiting rights and telephone restrictions;
• Television restrictions.
A doctor is required to determine if a prisoner is mentally fit to handle solitary confinement, and if allowed, a prison nurse will visit isolated prisoners daily to ensure their well-being.

Rights of Special Populations:

• Women: La Comella prison has a specific unit for women (of whom there were five detainees in 2018). Both men and women at La Comella prison have access to the same variety of activities.
• Juveniles: It is a rarity for a juvenile to be incarcerated in Andorra. Since 2017, no minors have been incarcerated. There are anti-isolation protocols in place, should there be a sole juvenile occupant of the prison. Despite this, La Comella prison has a specific unit for up to 10 minors with larger cells than those offered to adult prisoners. Juveniles are afforded a host of recreational and educational resources in the prison centre, these include:
  • A lounge room with televisions
  • A classroom with computed access
  • A library
  • A room for manual work
  • A gym
  • A leisure room with ping pong tables
  • A spacious courtyard with basketball hoops

  When minors were last in La Comella, they were required to be in their cells from 2100-0800, with the rest of their day being filled with activities and recreational time.

  Minors can be placed under solitary confinement for a maximum of three days at a time. In 2018, the CPT urged this to be prohibited given that Rule 45(2) of the United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) 2015 and Rule 67 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty both state that minors should not be placed into isolation.

Resources

- Andorra, Britannica: https://www.britannica.com/place/Andorra

- La Coutume d’Andorre, Brutails (1904)

- https://www.justicia.ad/

- CEPEJ Evaluation Report, 2022 Evaluation Cycle. (“CEPEJ Report 2022”) https://rm.coe.int/cepej-fiche-pays-2020-22-e-web/1680a86276

- Constitution of the Principality of Andorra: https://www.consellgeneral.ad/fitxers/documents/constitucio/const-en

- Legislative decree of 12-17-2008 publishing the revised text of the Code of Criminal Procedure (“Criminal Procedure Code”) https://www.bopa.ad/Documents/Detall?doc=5845A

- CEPEJ Report 2022

- Andorra Factsheet, International Justice Research Centre https://ijrcenter.org/country-factsheets/country-factsheets-europe/andorra-human-rights-factsheet/

- Andorra, Country reports on Human Rights Practices for 2011, Bureau of Democracy, Human Rights and Labor, United States Department of State (“US 2011 Report”) https://2009-2017.state.gov/documents/organization/186534.pdf

- Andorra 2022, Human Rights Report: https://www.state.gov/wp-content/uploads/2023/02/415610_ANDORRA-2022-HUMAN-RIGHTS-REPORT.pdf

- Report to the Andorran Government on the visit to Andorra carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680657674

- Law 22/2021, of September 17, on the consolidated text of the Code of Civil Procedure (“Civil Procedure Code”)

- Rapport au Gouvernement d’Andorre relatif à la visite effectuée en Andorre par le Comité européen pour la prévention de la torture et des peines ou traitements inhumains ou dégradants (CPT)