Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27540/95

by Joseph BRINCAT

against Italy

The European Commission of Human Rights (First Chamber) sitting

in private on 10 September 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 March 1995 by

Joseph BRINCAT against Italy and registered on 7 June 1995 under file

No. 27540/95;

Having regard to

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

21 November 1996 and the observations in reply submitted by the

applicant on 3 December 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Maltese lawyer born in 1944 and residing at

Marsa (Malta), was a member of the Maltese Parliament at the time of

introdution of the application. Before the Commission, he is

represented by Ms. Edwina Chetcuti, a lawyer practising in Valletta.

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.

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.

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 (convalidó l'arresto). He was returned to Lagonegro prison.

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).

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.

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. 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.

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.

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.

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 Scalea District Court as regarded the other charges.

The first hearing before the Scalea District Court 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 District

Court found the applicant guilty and sentenced him with a suspended

sentence of four months' imprisonment.

The applicant appealed against this decision before the Catanzaro

Court of Appeal. The first hearing before it was fixed at 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 accessory in

smuggling.

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.

The Paola public prosecutor requested that the Paola Customs

Department try and settle with the applicant the matter concerning the

alleged offence of smuggling at the administrative level; the Customs

Department replied that they were convinced that the applicant had not

committed any such offence.

The public prosecutor subsequently requested that the Judge for

the Preliminary Investigations ("Giudice per le Indagini Preliminari")

discontinue the proceedings against the applicant. However, the latter

rejected this request and instead requested the public prosecutor to

charge the applicant with accessory in smuggling.

By a decision of 24 November 1992 the applicant was committed for

trial. The hearing was fixed at 3 March 1993.

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).

On 3 March 1993, the Public Prosecutor amended the charge. The

case was subsequently adjourned. A new "Pretore" took office.

On 17 December 1993, the Customs Department settled the matter

with the applicant at the administrative level.

On 11 March 1994 the new "Pretore" heard evidence from certain

witnesses and read a previous deposition; the witnesses were three in

all.

The applicant had 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 the administrative level, he was to be

acquitted if there were evident grounds for an acquittal.

In its judgment, the "Pretore" dismissed the charge against the

applicant as time-barred. The applicant lodged an appeal before the

Catanzaro Court of Appeal.

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.

COMPLAINT

The applicant alleges that the criminal proceedings instituted

against him for smuggling exceeded the "reasonable time" referred to

in Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 7 March 1995 and registered on

7 June 1995.

On 4 September 1996 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

21 November 1996. The applicant replied on 3 December 1996.

THE LAW

The applicant complains about the length of the criminal

proceedings instituted against him. He invokes Article 6 para. 1

(Art. 6-1) of the Convention, according to which:

"In the determination of ... any criminal charge against

him, everybody is entitled to a ... hearing within a

reasonable time ...".

The Commission notes that proceedings started 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 (twice in first instance judge

and twice in appeal).

The Government argue that the delays in the proceedings are

mainly due to the applicant's requests for adjournment for reaching an

administrative settlement with Customs and to a strike of the local

bar. The Government maintain that in the present case the overall

duration of the proceedings cannot be regarded as being unreasonable.

The applicant points out that there were no investigations after

February 1988. He also recalls that, according to the Italian law, he

was invited by Customs to enter into an administrative settlement.

Moreover, it was about one year later that his lawyers were informed

that the invitation was being made although this invitation did not

stop proceedings. Afterwards, the adjournment for reaching an

administrative settlement was not provoked by the applicant but flowed

directly from the law. In any case the adjournment was really short,

three weeks. Finally he did not instigate the bar strike.

The Commission considers, in the light of the criteria

established by the case-law of the Convention organs on the question

of "reasonable time", and having regard to all the information in its

possession, that an examination of the merits of the complaint is

required.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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BRINCAT v. ITALY

BRINCAT v. ITALY

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