CASE OF BRINCAT v. ITALY
Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
C. Russo;John Freeland
6. Mr Joseph Brincat, a Maltese lawyer residing at Marsa (Malta), is a member of the Maltese Parliament and the Assembly of the Council of Europe. 7. On 19 November 1987 one of his 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 (province of Cosenza) 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 (procuratore della Repubblica). The police also confiscated the items which had been taken from the car. 8. On the following day, at 3.00 a.m., Mr Brincat was transferred to Lagonegro Prison (province of Potenza) and imprisoned in an isolation cell which he shared with another detainee. On the same day the Lagonegro public prosecutor informed Mr Brincat’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. Mr Brincat 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; he was no longer held in the isolation section, however, but associated with the other prisoners. 9. The Lagonegro public prosecutor conducted the preliminary investigation (istruzione sommaria). On 9 December he heard Mr Brincat 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 Mr Brincat 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). 10. On 18 December the Paola public prosecutor issued a warrant for Mr Brincat’s arrest (ordine de cattura) for possession of property and money originating from a ransom. He ordered him to be transferred to Cosenza Prison. 11. The applicant was informed of this decision on the same day, and was taken there in a prison van in the early morning of Saturday 19 December, in handcuffs. 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 (art. 5-4) of the Convention and the relevant provisions of the Code of Criminal Procedure; he also complained, relying on Article 5 para. 3 (art. 5-3), 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. 12. 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. According to the information available to the Court, these proceedings and the main proceedings, in which the charge was reduced to smuggling, are still pending. 13. The Code of Criminal Procedure in force at the time included the following provisions: "... A police officer who arrests a person or receives an arrested person must inform the public prosecutor ... thereof immediately, and in any event within forty-eight hours ... He must also notify him of the results of his inquiries within forty-eight hours. The public prosecutor ... must immediately question the arrested person and, if he considers the arrest to be well-founded, confirm the arrest (convalida) by a reasoned decision, at the latest within forty-eight hours following the above-mentioned notification. This order shall be notified to the arrested person. ..." "In the cases specified in Articles 235 and 236 (flagrante delicto) the public prosecutor ... may order the arrest. If the arrest warrant is oral, it must be confirmed as soon as possible in writing in the usual form." "Police officers who have without an order or warrant from the judicial authorities arrested a person or received a person who has been arrested ... must within twenty-four hours place him at the disposal of the public prosecutor or magistrate ... unless the prosecutor and magistrate have been informed of the arrest and consider an extension of the aforesaid time-limit to be necessary. The record of the arrest shall also be notified to the public prosecutor or magistrate. ..." "... If he does not have to order the accused’s release ... the public prosecutor or magistrate shall by a reasoned decision order the accused to be kept in detention at the disposal of the competent authorities ... ..." 14. The new Code of Criminal Procedure, which came into force on 24 October 1989, no longer authorises the public prosecutor to order detention.