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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