Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 13867/88

Joseph BRINCAT

against

ITALY

REPORT OF THE COMMISSION

(adopted on 28 May 1991)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-13) ............................. 1

A. The application

(paras. 2-4) ...................... 1

B. The proceedings

(paras. 5-8) ..................... 1

C. The present Report

(paras. 9-13) ..................... 2

II. ESTABLISHMENT OF THE FACTS

(paras. 14-20) ............................ 3

III. OPINION OF THE COMMISSION

(paras. 21-30) ............................ 5

A. Complaint declared admissible

(para. 21) ........................ 5

B. Point at issue (para. 22) ......... 5

C. Article 5 para. 3 of the Convention

(paras. 23-29) .................... 5

D. Conclusion

(para. 30) ........................ 6

APPENDIX I: History of the proceedings before the

Commission ........................... 7

APPENDIX II: Decision on the admissibility of the

application .......................... 8

I. INTRODUCTION

1. The following is an outline of the case, as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Maltese citizen, born in 1944 and resident

in Marsa (Malta). He is a lawyer and member of the Maltese Parliament

and of the Parliamentary Assembly of the Council of Europe.

3. The Italian Government were represented by their Agent,

Mr. Luigi Ferrari Bravo, head of the Legal Department at the Ministry

of Foreign Affairs.

4. The applicant was arrested on 5 December 1987. He was

interrogated on 7 December 1987 by the Substitute Public Prosecutor of

Lagonegro who confirmed the arrest. On 28 December 1987 the Court

(tribunale) of Cosenza examined a request by the applicant for his

release and granted this request.

The applicant alleges that contrary to Article 5 para. 3 of

the Convention he was not brought promptly before a judge or other

officer authorised by law to exercise judicial power, arguing in

particular that the Substitute Public Prosecutor who interrogated him

on 7 December 1987 did not have the qualifications required by that

provision.

B. The proceedings

5. The application was introduced on 8 January 1988 and

registered on 13 May 1988.

On 4 September 1989 the Commission decided to give notice of

the application to the Italian Government and invite them to submit

their observations on its admissibility and merits in respect of the

complaint under Article 5 para. 3 of the Convention.

6. The respondent Government's observations were submitted on

18 December 1989 and the reply thereto by the applicant on 30 January 1990.

7. On 13 July 1990 the Commission declared admissible the

complaint under Article 5 para. 3 of the Convention and inadmissible

the remainder of the application. It informed the parties that they

could, if they so wished, submit further evidence and additional

observations before 19 October 1990.

No further observations were submitted by the parties.

8. After declaring the case admissible the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed

itself at the disposal of the parties with a view to securing a

friendly settlement of the case. In the light of the parties' reaction

the Commission now finds that there is no basis upon which such a

settlement can be effected.

C. The present report

9. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

10. The text of this Report was adopted by the Commission on

28 May 1991 and is now transmitted to the Committee of Ministers of

the Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

11. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

i) to establish the facts, and

ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

12. A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

13. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

14. On 19 November 1987, Mr. S., a client of the applicant, was

seriously injured in a road accident near Maratea (Italy). His damaged

car was taken to a junkyard in the village of Tortora (Province of

Cosenza). Having been instructed by an insurance company to report

on the circumstances of the accident, the applicant went in the early

afternoon of Saturday 5 December 1987 accompanied by his client's wife

to the place where the car had been taken. When Mrs. S. tried to

retrieve personal belongings concealed in the petrol tank of the car,

the owner of the junkyard called the police. Among other objects of

value the police discovered a banknote which formed part of a ransom

sum paid for the release of a kidnapped person.

The applicant and Mrs. S. were taken to the Maratea police

station where they were interrogated. At 9 p.m. they were arrested.

15. On Sunday 6 December 1987 at about 3 a.m. they were

transferred to the prison of Lagonegro (Province of Potenza) pending

investigations by the Public Prosecutor of Lagonegro. On the same day

the Public Prosecutor informed the applicant's lawyer that he would

interrogate the applicant and Mrs. S. on Monday 7 December 1987.

16. On Monday 7 December 1987, at about 2.30 p.m., the applicant,

assisted by two lawyers, was interrogated by the Substitute Prosecutor

of Lagonegro who, by a decision of the same day, confirmed the

applicant's arrest.

The applicant was then transferred to a part of the prison

where he was detained with other prisoners.

17. In the next days the investigations of the Public Prosecutor of

Lagonegro proceeded as follows:

- on Tuesday 8 December 1987 he inquired about Mrs. S.'s

health;

- on Wednesday 9 December 1987 he again heard the applicant,

according to the latter's request of the same day, and asked for

information from Interpol with a view to ascertaining the statements

made by the applicant;

- on Thursday 10 December 1987 he received a telex from the

Public Prosecutor of Palermo confirming that one of the banknotes

found among the confiscated objects formed part of a ransom sum paid

for the release of a kidnapped person;

- on Thursday 10 and Friday 11 December 1987 he sent telegrams

to the Ministry of Foreign Affairs and the Ministry of Justice

requesting information on the applicant's parliamentary immunity.

18. Having interrogated the chief officer of the Maratea police

station and another witness on Monday 14 December 1987, the Public

Prosecutor of Lagonegro recognised his lack of jurisdiction for

reasons of territorial competence and sent the applicant's file to the

competent Prosecutor's Office of Paola where it arrived on Friday 18

December 1987 by post. He also revoked the applicant's permission to

consult with lawyers, to correspond with others and to receive visits

in prison, even from his sister, although she had travelled from

Malta.

In the meantime the applicant's lawyers had attempted to

contest the warrant of arrest issued by the Public Prosecutor of

Lagonegro. However, the Prosecutor's Office of Lagonegro was no longer

competent and the competent Prosecutor's Office of Paola had not yet

received the applicant's file preventing thus the Court of Cosenza from

dealing with the matter.

19. On Friday 18 December 1987 the applicant was notified a

warrant of arrest issued by the Public Prosecutor of Paola, identical

to that issued by the Public Prosecutor of Lagonegro, followed by an

order for his transfer to the Cosenza prison.

On Saturday 19 December 1987, early in the morning, the

applicant was handcuffed and put in a prison van.

At the Cosenza prison the applicant was informed that all the

bans about correspondance, visits and telephone contacts with his

family had been lifted by the Substitute Prosecutor of Paola. On the

same day, i.e. on 19 December 1987, the applicant filed an application

with the Court of Cosenza, to have the warrant of arrest examined in

accordance with Article 5 para. 4 of the Convention and the relevant

provisions of the Italian Code of Criminal Procedure. He also invoked

Article 5 para. 3 of the Convention alleging that he had not been

brought "promptly before a judge or other officer authorised by law to

exercise judicial power".

On Tuesday 22 December 1987 the applicant was interrogated by

the Public Prosecutor of Paola.

20. On Monday 28 December 1987 the Court of Cosenza quashed the

warrant of arrest issued by the Public Prosecutor of Paola on

18 December 1987 and ordered the applicant's immediate release. The Court

considered that the warrant of arrest was not based on sufficient

evidence.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

21. The application was declared admissible in respect of the

applicant's complaint that, contrary to Article 5 para. 3 (Art. 5-3)

of the Convention, he was not brought promptly before a judge or other

officer authorised by law to exercise judicial functions.

B. Point at issue

22. The issue to be determined in the present case is whether the

Substitute Public Prosecutor who interrogated the applicant on

7 December 1987 could be regarded as an officer exercising judicial

functions within the meaning of Article 5 para. 3 (Art. 5-3) of the

Convention and, if not, whether the applicant was nevertheless brought

promptly before a judge or other officer exercising judicial

functions.

C. Article 5 para. 3 (Art. 5-3) of the Convention

23. Article 5 para. 3 (Art. 5-3) of the Convention secures to

"everyone arrested or detained in accordance with the provisions of

paragraph 1 (c)" of Article 5 (Art. 5) the right to be "brought

promptly before a judge or other officer authorised by law to exercise

judicial power".

24. The applicant contests that the Substitute Prosecutor of

Lagonegro, who interrogated him two days after his arrest, had the

qualifications required by Article 5 para. 3 (Art. 5-3).

In his view, the Italian Code of Criminal Procedure then in

force granted the Public Prosecutor the same powers of coercion as

were attributed to a judge, but in no way gave him independence,

impartiality and equidistance from the parties, essential requisites

for the exercise of any judicial function.

The applicant also complains that, in any event, he was not

brought "promptly" before an officer authorised by law to exercise

judicial power. In his submission the Public Prosecutor of Lagonegro

had failed to send his file with urgency to the competent Public

Prosecutor's Office. Arrested on 5 December 1987, the applicant was

only heard by the competent Prosecutor on 22 December 1987 and no

court decision was taken until 28 December 1987.

25. The Government submit that even before the new Code of

Criminal Procedure came into force in Italy on 24 October 1989 the

Public Prosecutor had the attributes of a "judge or other officer

authorised by law to exercise judicial power" within the meaning of

Article 5 para. 3 (Art. 5-3) of the Convention. Referring to the

Schiesser case, the Government consider that the Public Prosecutor of

Lagonegro met the requirements established by the Court, namely that

he was independent of the executive and of the parties, that he was

under an obligation to hear the individual brought before him and that

he had to review the circumstances militating for or against detention

(see Eur. Court H.R., Schiesser judgment of 4 December 1979, Series A

No. 34, p. 13 and seq. para. 31).

The Government further submit that the applicant was brought

"promptly" before a judge or other officer authorised by law to

exercise judicial power. He was indeed interrogated by the Substitute

Public Prosecutor of Lagonegro about 40 hours after his arrest. The

fact that the Public Prosecutor of Lagonegro had no jurisdiction for

lack of territorial competence did not make his activity ineffective

for the purposes of Article 5 para. 3 (Art. 5-3) of the Convention.

26. The Commission notes in the first place that, under the

Italian law then in force, the Public Prosecutor who confirmed an

arrest could well be required later to conduct the prosecution against

the arrested person, although this did not happen in the present case.

27. The Commission and the Court were confronted with a similar

issue in the Huber case (see below para. 28). In that case, the Court

referred to several judgments which were given after the Schiesser

judgment of 4 December 1979 and which concern Netherlands legislation

on the arrest and detention of military personnel (see Eur. Court

H.R., de Jong, Baljet and van den Brink judgment of 22 May 1984,

Series A n° 77, p. 24 para. 49; van der Sluijs, Zuiderveld and Klappe

judgment of the same date, Series A no. 78, p. 19 para. 44; and

Duinhof and Duijf judgment of the same date, Series A no. 79, p. 17

para. 38). It found in these cases that the auditeur-militair, who

had ordered the detention of the applicants, could also be called upon

to assume, in the same case, the role of prosecuting authority after

referral of the case to the Military Court. It concluded from this

that he could not be "independent of the parties" at that preliminary

stage precisely because he was "liable to become one of the parties"

at the next stage in the procedure.

28 the Huber case as regards general criminal justice. It concluded

that the impartiality of the judicial officer who orders the detention

is capable of appearing open to doubt if he is entitled to intervene

in the subsequent criminal proceedings as a representative of the

prosecuting authority (see Eur. Court H.R., Huber judgment of

23 October 1990, Series A No. 188, p. 18 paras. 42 and 43 with further

references).

29. The Commission notes that, in the present case, the Government

have admitted that it was possible under Italian law that the

Substitute Prosecutor of Lagonegro, after having confirmed the

applicant's arrest, would subsequently be entrusted with the task of

conducting the prosecution against him. On the basis of the Court's

above-mentioned case-law, it follows that in such circumstances the

Prosecutor could not be considered an "officer authorised by law to

exercise judicial power" within the meaning of Article 5 para. 3

(Art. 5-3) of the Convention. Consequently, the applicant was not

brought promptly before such an officer as required by this provision.

D. Conclusion

30. The Commission concludes by a unanimous vote, that there has

been a violation of Article 5 para. 3 (Art. 5-3) of the Convention.

Secretary to President of

the Commission the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

APPENDIX I

HISTORY OF PROCEEDINGS BEFORE THE COMMISSION

Date Item

_____________________________________________________________

8 January 1988 Introduction of the application

13 May 1988 Registration of the application

Examination of admissibility

4 September 1989 Commission's decision to invite

the Italian Government to submit

observations on the admissibility

and merits of the application

18 December 1989 Government's observations

30 January 1990 Applicant's observations in

reply

13 July 1990 Commission's decision to declare

admissible the complaint

relating to Article 5 para. 3 of

the Convention and to declare

inadmissible the remainder of

the application

Examination of the merits

12 January 1991 Commission's consideration of

the state of proceedings

28 May 1991 Commission's deliberations on

the merits, final vote and

adoption of the Report

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BRINCAT v. ITALY

BRINCAT v. ITALY

LEXI