CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 1997

.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 }                      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