Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13867/88

by Joseph BRINCAT

against Italy

The European Commission of Human Rights sitting in private

on 13 July 1990, the following members being present:

MM. J.A. FROWEIN, Acting President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 8 January 1988

by Joseph BRINCAT against Italy and registered on 13 May 1988 under

file No. 13867/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having regard to the Commission's decision of 4 September 1989

to bring the application to the notice of the respondent Government

and invite them to submit written observations on its admissibility

and merits;

Having regard to the observations submitted by the respondent

Government on 18 December 1989 and the observations in reply submitted

by the applicant on 30 January 1990;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as submitted by the parties may be

summarised as follows :

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.

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 from 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.

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.

In the prison of Lagonegro, the applicant was confined to an

isolation cell which on the first day he had to share with another

prisoner. The cell contained two beds separated by a distance of

barely thirty centimetres. Over the applicant's bed was a sort of

table fixed to the wall and covering the greater part of his bed.

Behind the prisoners' heads separated by a low wall were toilet

facilities. The defective flushing system disturbed the inmates of the

cell day and night with shattering and penetrating noise. At the same

time there was no water in the tap. A dustbin contained refuse of

several days, stenching remains of food.

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. He had to ask for their help

since, unlike them, he was refused to buy essential things out of his

own money.

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 10 and 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.

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.

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. He had to keep the

handcuffs during the whole trip. At one time, the driver had to put on

the brake abruptly and the applicant, without any possibility of using

his hands, was thrown against the partition separating him from the

driver.

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 22 December 1987 the applicant was interrogated by the

Public Prosecutor of Paola.

On 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.

COMPLAINTS

1. The applicant alleges a violation of Article 5 para. 3 of the

Convention. He contests that the Public Prosecutor is an officer

autorised by law to exercise judicial power within the meaning of this

provision.

In the applicant's view, the Italian Code of Criminal

Procedure grants the Public Prosecutor the same powers of coercion as

are attributed to a judge, but in no way gives him the 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 has

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.

2. The applicant further complains that he was subjected to

inhuman and degrading treatment, in violation of Article 3 of the

Convention, namely

- during his detention in the isolation cell in the Lagonegro

prison,

- when being kept several days in that prison without the

possibility of contacting his family,

- during the time his file was being sent from the

Prosecutor's Office of Lagonegro to that of Paola as no one

was in a position to deal with his complaints, and

- during his transport, handcuffed, in a prison van from the

Lagonegro prison to that of Cosenza with a great potential

and almost actual risk to his personal safety causing a

mental trauma about the possibility of an accident.

3. Finally in his submissions of 30 January 1990 in reply to the

Government's observations the applicant added the complaint that from

14 to 18 December 1987 during the transmission of his file by mail

from the Public Prosecutor's Office of Lagonegro to that of Paola he

was deprived of his right to have the lawfulness of his detention

examined speedily by a court. He alleges a violation of Article 5

para. 4 of the Convention in this respect.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 8 January 1988 and

registered on 13 May 1988.

On 4 September 1989 the Commission decided to communicate the

application to the respondent Government and to invite them pursuant

to Rule 42 para. 2 (b) of the Rules of Procedure to submit

observations on its admissibility and merits, in respect of the

complaints under Article 5 para. 3 of the Convention.

The respondent Government's observations were submitted on 18

December 1989 and the reply thereto by the applicant on 30 January

1990.THE LAW

1. The applicant complains that his arrest was confirmed by a

Public Prosecutor who, in his opinion, could not be regarded as having

been independent and impartial and was not "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.

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

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

to exercise judicial power as required by the above provision. He

stresses that when the court decision to release him was taken on 28

December 1987, he had then been detained for 23 days.

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 (see Eur. Court HR, Schiesser judgment of 4 December

1979, Series A No. 34, p. 13 and seq. para. 31) the Government

consider that the Public Prosecutor of Lagonegro met the requirements

established by the Convention organs, 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.

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 on the third day of his detention 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.

The Commission considers, in the light of the parties'

submissions, that the applicant's complaints under Article 5 para. 3

(Art. 5-3) of the Convention, relating primarily to the functions of

the Public Prosecutor concerned, raises complex issues of law and fact

under the Convention, the determination of which should depend on an

examination of the merits. This part of the application is therefore

not manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention, and must be declared admissible, no

other grounds for declaring it inadmissible having been established.

2. The applicant also complains that he was subject to inhuman

and degrading treatment, in violation of Article 3 (Art. 3) of the

Convention, during his detention in the Lagonegro prison and during

his transport, handcuffed, in a prison van from the Lagonegro prison

to that of Cosenza and by reason of the impossibility to deal with his

complaints during the time his file was sent from one Prosecutor's

Office to the other.

The Commission recalls that, according to the case-law of the

Court and the Commission, treatment must attain a certain minimum

level of severity in order to constitute "inhuman" or "degrading"

treatment within the meaning of Article 3 (Art. 3) of the Convention

(cf. Eur. Court H.R., Ireland v. the United Kingdom judgment of 18

January 1978, Series A No. 25, pp. 66-67 and 68, paras. 167 and 174

and Tyrer judgment of 25 April 1978, Series A No. 26, pp. 14 and 15,

paras. 29 and 30). In the present case, the treatment to which the

applicant was subjected during his detention, although in some

respects harsh, did not, in the Commission's view, attain that minimum

level of severity.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. In his observations of 30 January 1990 in reply to the

Government's observations, the applicant also complained that, while

his file was transmitted from one public prosecutor's office to

another, he had been unable to request an examination of the lawfulness

of his detention as required by Article 5 para. 4 (Art. 5-4) of the

Convention.

The applicant himself admitted that this was a new complaint,

although he considered that the Commission would nevertheless be

entitled to deal with it. The Commission notes however, that according

to Article 26 (Art. 26) of the Convention any complaint shall be submitted

within six months from the date of the final domestic decision. When,

as in regard to the present complaint, there is no domestic decision,

the six months time-limit shall be calculated from the date when the

facts occurred which form the basis of the complaint. The relevant

facts in this case relate to December 1987, whereas the complaint was

made on 30 January 1990.

It follows that this part of the application must be rejected

according to Articles 26 (Art. 26) and 27 para. 3 (Art. 27-3) of the

Convention.

For these reasons, the Commission :

1. DECLARES ADMISSIBLE WITHOUT PREJUDGING THE

MERITS, THE COMPLAINT RELATING TO ARTICLE 5 PARA. 3 (Art. 5-3)

OF THE CONVENTION (PARA.1 OF THE LAW); AND

2. DECLARES INADMISSIBLE THE REMAINDER OF THE

APPLICATION.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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BRINCAT v. ITALY

BRINCAT v. ITALY

LEXI