CEDH · CASELAW;REPORTS;ENG — 28 mai 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }    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