Brincat v Italy (Series A, No 249-A; Application No 13867/88) EUROPEAN COURT OF HUMAN RIGHTS (1993) 16 EHRR 591, 26 NOVEMBER 1992

Impartiality of prosecutor in criminal proceedings

FACTS:
The applicant, a Maltese lawyer, was arrested whilst in Italy. The deputy public prosecutor confirmed the applicant's continued detention. However, that prosecutor later recused himself from the case for lack of territorial jurisdiction and the applicant was subsequently released and charges against him dropped due to insufficient evidence against him. The applicant filed this suit alleging that the deputy public prosecutor's successive functions lacked objective impartiality which violated Article 5(3) of the European Convention on Human Rights

1. Detention: judicial officer (Art 5(3)).

A judicial officer who is competent to decide on detention may also carry out other duties in the given case. However that officer may not appear to be “objectively impartial” if he becomes party to the dispute by becoming a representative of the prosecuting authority. The fact that the officer in this later reused himself is immaterial for this violation.

The following cases are referred to in the judgment:

1. DE JUNG, BALJET AND VAN DEN BRINK v NETHERLANDS (A/77): (1984) 8 EHRR 20. 
2. DUINHOF AND DUIJF v NETHERLANDS (A/79): (1984) 13 EHRR 478.
3. HUBER v SWITZERLAND, Series A, No 188.
4. ANDERSSON v SWEDEN (A/266): (1992) 14 EHRR 615.
5. PAUWELS v BELGIUM (A/135): (1988) 11 EHRR 238.
6. SCHIESSER v SWITZERLAND (A/34): (1979) 2 EHRR 417.
7. VAN DER SLUIJS, ZUIDERVELD AND KLAPPE v NETHERLANDS (A/78): (1984) 13 EHRR 461.

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