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CASE OF BRINCAT AGAINST ITALY

Doc ref: 13867/88 • ECHR ID: 001-55586

Document date: June 9, 1994

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CASE OF BRINCAT AGAINST ITALY

Doc ref: 13867/88 • ECHR ID: 001-55586

Document date: June 9, 1994

Cited paragraphs only

The Committee of Ministers, under the terms of Article 54

(art. 54) of the Convention for the Protection of Human Rights

and Fundamental Freedoms (hereinafter referred to as "the

Convention"),

Having regard to the judgment of the European Court of Human

Rights in the case of Brincat against Italy delivered on

26 November 1992 and transmitted the same day to the Committee

of Ministers;

Recalling that the case originated in an application against

Italy lodged with the European Commission of Human Rights on

8 January 1988 under Article 25 (art. 25) of the Convention by

Mr Joseph Brincat, a Maltese national, who complained that after

being arrested and kept in detention, he had not been brought

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

to exercise judicial power;

Recalling that the case was brought before the Court by the

Commission on 12 July 1991;

Whereas in its judgment of 26 November 1992 the Court

unanimously:

- held that there had been a violation of Article 5,

paragraph 3 (art. 5-3), of the Convention;

- held that the Respondent State is to pay to the applicant,

within three months, 1 000 Maltese pounds for non-pecuniary

damage, and 821,43 Maltese pounds and 400 pounds sterling for

costs and expenses;

- dismissed the remainder of the claim for just

satisfaction;

Having regard to the Rules adopted by the Committee of

Ministers concerning the application of Article 54 (art. 54) of

the Convention;

Having invited the Government of Italy to inform it of the

measures which had been taken in consequence of the judgment of

26 November 1992, having regard to its obligation under

Article 53 (art. 53) of the Convention to abide by it;

Whereas, during the examination of the case by the Committee

of Ministers, the Government of Italy gave the Committee

information about the measures taken in consequence of the

judgment, which information appears in summary in the appendix

to this resolution;

Having satisfied itself that on 14 May 1993, the Government

of Italy has paid the applicant the sums provided for in the

judgment of 26 November 1992,

Declares, after having taken note of the information

supplied by the Government of Italy, that it has exercised its

functions under Article 54 (art. 54) of the Convention in this

case.

Appendix to Resolution DH (94) 46

Information provided by the Government of Italy

during the examination of the Brincat case

by the Committee of Ministers

Already, as a result of Act No. 330 of 5 August 1988, which

anticipated the entry into force of the new Code of Criminal

Procedure, all measures restricting personal liberty had

henceforth to be taken by the investigating judge upon receipt

of a reasoned request from the public prosecutor or the judge of

first instance. The new Code of Criminal Procedure, which

entered into force on 24 October 1989, has granted this power to

the new judge of the preliminary investigation.

The latter is not, according to the new Code, identical to

the old investigating judge. He is not involved in the

investigation of criminal cases and does not take any

investigative measures, but controls the lawfulness of the

measures taken by the public prosecutors. Furthermore, he has

exclusive competence to order, at the request of the public

prosecutor, measures interfering with constitutional rights and

freedoms, such as measures restricting personal liberty,

telephone tappings and seizures.

The decisions of the judge of the preliminary investigation

in matters related to deprivation of liberty may be appealed, on

points of law, to the Court of Cassation, and, as to the merits,

to the criminal court.

The government is of the opinion that these measures ensure

that the Italian regulations and practice in matters of detention

on remand comply with the requirements of Article 5,

paragraph 3 (art. 5-3), as interpreted by the Court.

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