EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 27540/95

Joseph Brincat

against

Italy

REPORT OF THE COMMISSION

(adopted on 4 March 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-5) 1

II. ESTABLISHMENT OF THE FACTS

(paras. 6-26) 2

III. OPINION OF THE COMMISSION

(paras. 27-37)              6

A. Complaint declared admissible

(para. 27) 6

B. Point at issue

(para. 28) 6

C. As regards Article 6 para. 1 of the Convention

(paras. 29-36 )              6

CONCLUSION

(par. 37) 7

APPENDIX: DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION 8

I. INTRODUCTION

1. The present Report concerns Application No. 27540/95 introduced on 7 March 1995 against Italy and registered on 7 June 1995.

The applicant is a Maltese citizen, born in 1944 and resident at Marsa (Malta).

The applicant is represented before the Commission by Ms Edwina Chetcuti , a lawyer practising in Valletta.

The respondent Government are represented by Mr Umberto Leanza , Head of the Diplomatic Legal Service, Ministry of Foreign Affairs.

2. The application was communicated to the Government on 4 September 1996.  Following an exchange of written observations, the complaint relating to the length of proceedings (Article 6 para. 1 of the Convention) was declared admissible on 10 September 1997.  The decision on admissibility is appended to this Report. On 3 November 1997, the applicant has submitted his answer to a question posed by the Commission.

3. Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (First Chamber), after deliberating, adopted this Report on 4 March 1998 in accordance with Article 31 para. 1 of the Convention, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

4. In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by Italy.

5. The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

II. ESTABLISHMENT OF THE FACTS

6. In his application, in which he relies on Article 6 para. 1 of the Convention, the applicant complains about the length of criminal proceeding instituted against him in Italy. In a previous application to the Commission (No. 13867/88), he had complained about detention on remand.

The facts of the case, as submitted by the parties in the present application and taken into consideration by the European Court on Human Rights in its judgment on the previous application (see Eur. Court HR, Brincat v. Italy judgment of 26 November 1992, Series A no. 249-A, pp. 8-9, paras. 6-12), may be summarised as follows.

7. On 19 November 1987 one of applicant's clients was seriously injured in a road accident near Maratea (Italy).

The applicant was instructed by an insurance company to report on the circumstances of the accident and, on 5 December 1987, accompanied by the victim's wife, he went to a scrapyard at Tortora where the damaged vehicle had been taken. The client's wife having attempted to recover personal property concealed in the petrol tank, the owner of the scrapyard alerted the police, who discovered in her possession inter alia a banknote which formed part of the ransom paid for the release of a person who had been kidnapped. The police thereupon took them to Maratea police station, where they were both questioned, and then put them under arrest, at the disposal of the public prosecutor. The police also confiscated the items which had been taken from the car.

8. On the following day, the applicant was transferred to Lagonegro prison. The Lagonegro public prosecutor informed the applicant's lawyer that he would hear the applicant on Monday 7 December, within the period of forty-eight hours laid down by Article 238 of the Code of Criminal Procedure in force at the time.

The applicant appeared on that date, assisted by two lawyers. After questioning him, the deputy public prosecutor confirmed his detention ( convalidò l'arresto ). He was returned to Lagonegro prison.

9. The Lagonegro public prosecutor conducted the preliminary investigation. On 9 December he heard the applicant again, at the latter's request, and checked his statements with Interpol . On 10 December he received a telex from the Palermo public prosecutor confirming the provenance of one of the banknotes which had been seized. On that and the following day he sent telegrams to the Ministry of Foreign Affairs and the Ministry of Justice in order to obtain information on the applicant's parliamentary immunity.

Finally, after hearing the Maratea chief of police and another witness on 14 December, the Lagonegro public prosecutor declared that he did not have territorial jurisdiction. He sent the file by post to the public prosecutor's office which did have jurisdiction, that of Paola, which received it on 18 December. He also revoked the permission which the applicant had been given to consult his lawyers, communicate with other persons and receive visits in prison, in particular from his sister who had travelled from Malta for this purpose.

The applicant's lawyers had in the meantime attempted to challenge his continued detention, but in vain: as the public prosecutor's office at Lagonegro had declined jurisdiction and that at Paola was not yet in possession of the necessary documents, the Cosenza District Court was not empowered to deal with the matter (Article 76 of the Code of Criminal Procedure).

10. On 18 December the Paola public prosecutor issued a warrant for the applicant's arrest ( ordine di cattura ) for possession of property and money originating from a ransom. He ordered him to be transferred to Cosenza Prison.

11. On 19 December the applicant was taken to Cosenza Prison. On his arrival he was informed that the deputy public prosecutor at Paola had lifted the prohibitions relating to his correspondence, visits and telephone contacts with his family. He applied at once to the Cosenza District Court for the arrest warrant to be examined in accordance with Article 5 para. 4 of the Convention and the relevant provisions of the Code of Criminal Procedure; he also complained, relying on Article 5 para. 3, that he had not been "brought promptly before a judge or other officer authorised by law to exercise judicial power".

The Paola public prosecutor questioned him on Tuesday 22 December 1987.

12. On Monday 28 December 1987 the Cosenza District Court vacated the arrest warrant of 18 December and ordered the applicant's immediate release, as there was insufficient evidence against him.

The public prosecutor appealed to the Court of cassation against the quashing of the warrant of arrest.

13. On 8 January 1988 the applicant filed an application (No. 13867/88) with the European Commission of Human Rights concerning the alleged violation of his rights under Article 5 para. 3 of the Convention.

14. On 8 February 1988 the public prosecutor requested that the Investigating Judge send the file back to his office in order to pursue the investigations in relation to charges against the applicant's client and a charge of receiving stolen goods against the applicant and the client's wife.

15. In a judgment dated 23 February 1988 the Investigating Judge held that the charge of money laundering was manifestly ill-founded; he sent the case to the public prosecutor attached to the Scalea magistrate's  Court as regarded the other charges. On 22 october 1988, the applicant was committed for trial.

16. The first hearing before the Scalea magistrate was fixed at 17 February 1989. On this date, the evidence of two witnesses was heard.

By a judgment delivered on the same date, the Scalea   magistrate found the applicant guilty and sentenced him to a suspended sentence of four months' imprisonment.

17. The applicant appealed against this decision before the Catanzaro Court of Appeal. The first hearing before it was fixed for 21 March 1991.

By a judgment delivered on the same day, the Catanzaro Court of Appeal quashed the impugned judgment; it held that the charge of receiving stolen goods was inadmissible and referred the case back to the Paola prosecution office asking the latter to pursue the investigations in relation to a possible charge of being an accessory to smuggling.

18. On 24 September 1992 the Court of cassation declared inadmissible the appeal lodged by the public prosecutor against the quashing of the warrant of arrest by the Cosenza District Court.

19. The Paola public prosecutor requested at an administrative level that the Paola Customs Department try and settle with the applicant the matter concerning the allegation of smuggling ; the Customs Department replied that they were convinced that the applicant had not committed any such offence.

20. The public prosecutor subsequently requested that the Judge for Preliminary Investigations attached to the magistrate's Court (" Giudice per le Indagini Preliminari presso la procura circondariale ") discontinue the proceedings against the applicant. However, the latter rejected this request and instead requested the public prosecutor to charge the applicant with being an accessory to smuggling.

By a decision of 24 November 1992 the applicant was committed for trial before the Scalea magistrate. The hearing was fixed for 3 March 1993.

21. On 26 November 1992, the European Court of Human Rights delivered its judgment finding a violation of the applicant's rights under Article 5 para. 3 of the Convention (see Eur. Court HR, Brincat v. Italy judgment of 26 November 1992, Series A no. 249-A).

22. On 6 February 1993 the applicant informed the magistrate that on 18 December 1992 he had asked the Customs Department to settle the matter at an administrative level and expressed his fear that an agreement could not be reached before 3 March 1993.

On 3 March 1993, the Public Prosecutor amended the charge. The case was subsequently adjourned.

23. On 28 May 1993 and 13 July 1993, the hearings were postponed because of a local bar strike. In reply to a question put by the Commission about the length of the strike, the applicant stated that the strike lasted for "a matter of days only" (see para. 2 above). The Government have given no more details.

24. On 24 November 1993, the applicant requested an adjournment of the hearings because, following his request, the Customs Department had decided to settle the matter with the applicant at an administrative level.

Three weeks later, on 17 December 1993, a new magistrate took office and, on the applicant's request, decided to recommence the proceedings. According to the applicant, this was in order that the new magistrate should be able to hear the witnesses who had already given evidence before the previous magistrate. According to the Government, a postponement was requested by the applicant for the purpose of serving the persons tried in absentia with an order to appear before the new magistrate.

25. On 11 March 1994 the new magistrate heard evidence from certain witnesses and read a previous deposition; a total of three witnesses were heard.

The applicant filed with the court a request pursuant to article 129 of the new Code of Criminal Procedure that, although the matter had been settled at an administrative level, he should be acquitted if there were clear grounds for an acquittal.

In its judgment, delivered on the same day, the magistrate decided to terminate the proceedings against the applicant since the offence was considered extinguished as a result of the administrative compromise. The applicant lodged an appeal before the Catanzaro Court of Appeal.

26. On 19 October 1994, the Catanzaro Court of Appeal acquitted the applicant on grounds that no smuggling had been committed. The decision was filed with the Registry on 5 November 1994 and became final on 18 December 1994.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

27. The Commission has declared admissible the applicant's complaint that his case was not heard within a reasonable time.

B. Point at issue

28. The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" requirement referred to in Article 6 para. 1 (Art. 6-1) of the Convention.

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

29. The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention provides as follows:

"In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ..."

30. The proceedings in question concerned the criminal charges brought against the applicant and they accordingly fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.

31. These proceedings, which began on 5 December 1987 when the applicant was arrested, and ended on 18 December 1994, when the applicant's acquittal became final. The overall length is over seven years for four degrees of jurisdiction (two in first instance and two in appeal).

32. The Commission recalls that the reasonableness of the length of the proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur. Court HR, Vernillo v. France judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).

33. According to the respondent Government, the length of the period in question is due to the applicant's conduct and to an "extended" local bar strike.

34. The Commission notes that the case was not complex. The Commission considers that the applicant's conduct is not in itself sufficient to explain the length of the proceedings. As regards to the local bar strike, "there can be no doubt that an event of that kind cannot render a Contracting State liable with respect to the 'reasonable time' requirement; however, the efforts made by the State to reduce any resultant delay are to be taken into account for the purposes of determining whether the requirement has been complied with" (Eur. Court HR, Papageorgiou v. Greece judgment of 22 October 1997, Reports 1997-VI, p. 2291, par. 47). In the present case, the Commission has no details about the length of the strike (see para. 23 above). However, the Commission notes that a new hearing was held on 24 November 1993, that is to say a little more than four months after the last postponement due to the strike.

The Commission notes the existence of a period of inactivity of more than two years imputable to the State between 17 February 1989, on which date the Scalea District Court delivered its judgement, and 21 March 1991, on which date the Catanzaro Court of appeal dealt with the applicant's appeal. It considers that no convincing explanation for this delay has been advanced by the respondent Government.

As regards the different phases of the proceedings, the Commission recognises that they were conducted at a reasonably regular pace. If the case is examined as a whole however, the only possible conclusion is that the reasonable time requirement was not complied with.

35. The Commission reaffirms that it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision on any criminal charge brought against him within a reasonable time (see Eur. Court HR, Baggetta v. Italy judgment of 22 June 1987, Series A no. 119, p. 32, para. 23).

36. In the light of the criteria established by case-law and having regard to the circumstances of the present case, the Commission considers that the length of the proceedings was excessive and failed to meet the "reasonable time" requirement.

CONCLUSION

37. The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

M.F. BUQUICCHIO    M.P. PELLONPÄÄ

   Secretary President

       to the First Chamber of the First Chamber