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BOOK SECOND
LAWS OF CRIMINAL PROCEDURE
PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED
Title I Of the Powers and Duties of the Executive Police in respect of Criminal Prosecutions
Sub-title VII Warrants
355AJ. (1) Where any person is arrested, whether with or without a warrant, the arresting police officer or his superior shall, as soon as practicable and unless the person arrested has been released within six hours from arrest, inform a Magistrate, giving all details as to time and place where the person is being held.
(2) The Magistrate may order that the person arrested be transferred to another place with immediate effect.
(3) Any person arrested in pursuance of any provision of this Code and who has not been brought before a court within forty-eight hours of his arrest shall be released.
BOOK SECOND
LAWS OF CRIMINAL PROCEDURE
PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED
Title I Of the Powers and Duties of the Executive Police in respect of Criminal Prosecutions
Sub-title VIII
DETENTION
355AL. (1) It shall be duty of the custody officer to order the immediate release from custody of any person in police detention in the circumstances mentioned in article 355AJ(3) or where the custody officer becomes aware that the grounds for the detention of that person have ceased to apply and there are no other lawful grounds on which the continued detention of that person could be justified.
BOOK SECOND
LAWS OF CRIMINAL PROCEDURE
PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED
Title I Of the Powers and Duties of the Executive Police in respect of Criminal Prosecutions
Sub-title IX
RIGHTS OF PERSONS DETAINED
355AS. (1) It shall be the duty of the Police to inform without undue delay the person arrested or detained of his right to request that a relative or friend be informed of the fact of his arrest and of his whereabouts unless such relative or friend is reasonably suspected of being involved in the offence being investigated. If the person arrested avails himself of such right the relative or friend shall without undue delay be informed accordingly and a record as provided in subarticles (2) and (3) shall be kept of the way the Police discharged their duty under this subarticle.
(2) In all cases the following information shall be entered in the detention record of the person detained:
(a) the day and time in which the detained person was informed of his right under this article;
(b) whether the detained person chose to avail himself of that right or not;
(c) if the detained person chose to avail himself of that right, the details of the relative or friend informed of the detained person’s arrest and whereabouts together with the day and time in which the information was given; if such relative or friend was not so informed the reasons for this.
(3) The arrested or detained person shall be requested to sign the record referred to in subarticle (2) and should he refuse to do so an entry shall be entered in the record to this effect.
(4) Notwithstanding the provisions of subarticle (1), the investigating officer may by application to a Magistrate request that he be authorised to delay informing a relative or friend of the detained person if there are reasonable grounds for suspecting that the giving of such information may be prejudicial to the investigation or to the recovery of things, or that it may alert other persons who are connected with the offence and are still not in Police custody. Such a delay shall not be later than six hours from the time when the arrest was effected.
(5) An arrested person shall, at his request, be allowed to consult a medical adviser of his choice provided that such medical adviser is readily available.
(6) The application referred to in subarticle (4) may be communicated to the Magistrate by facsimile:
Provided that, as soon as practicable, the original application shall be delivered for record purposes.
355AT. (1) Subject to the provisions of subarticle (3), a person arrested and held in police custody at a police station or other authorised place of detention shall, if he so requests, be allowed as soon as practicable to consult privately with a lawyer or legal procurator, in person or by telephone, for a period not exceeding one hour. As early as practical before being questioned the person in custody shall be informed by the Police of his rights under this subarticle.
(2) A request made under subarticle (1) shall be recorded in the custody record together with the time that it was made unless the request is made at a time when the person who makes it is at court after being charged with an offence in which case the request need not be so recorded.
(3) Subject to the provisions of subarticle (7), compliance with a request under subarticle (1) may be delayed if the person making the request is in police detention for a crime and if an officer not below the rank of superintendent authorises such delay.
(4) An authorisation under subarticle (3) may be given orally or in writing but if it is given orally it shall be confirmed in writing as soon as it is practicable.
(5) An officer may only authorise delay where he has reasonable grounds for believing that the exercise of the right conferred by subarticle (1) at the time when the person detained desires to exercise it -
(a) will lead to interference with or harm to evidence connected with the offence being investigated or interference with or physical injury to other persons; or;
(b) will lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it; or
(c) will hinder the recovery of any property obtained as a result of such an offence; or
(d) in the case of a person detained for an offence of drug trafficking, bribery, or money laundering, will hinder the recovery of the value of that person’s proceeds from the offence.
(6) Where delay has been authorised as provided in subarticle (5) the Police may immediately proceed to question the detained person.
(7) The delay mentioned in subarticle (3) shall in no case exceed thirty-six hours from the time of the arrest.
(8) Any police officer who tries to indicate to a person detained the advocate or legal procurator who should be engaged during the detention of such person, shall be guilty of an offence and shall be punishable with a fine (ammenda) and this without prejudice to any disciplinary proceedings that may be taken against him.
(9) Where the person detained chooses not to seek legal assistance the investigating officer shall record this fact in writing in the presence of two witnesses and thereupon questioning may proceed immediately.
355AU. (1) Where in any proceedings against a person for an offence, evidence is given that the accused -
(a) at any time before he was charged with the offence, on being questioned by the police trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or
(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,
being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subarticle (2) shall apply if it is shown that the accused had received legal advice before being questioned, charged or informed as aforesaid.
(2) Where this subarticle applies -
(a) a Court of Magistrates as court of criminal inquiry in making a decision under article 401(2);
(b) the court or jury, in determining whether the person charged or accused is guilty of the offence charged,
may draw such inferences from the failure as appear proper, which inferences may not by themselves be considered as evidence of guilt but may be considered as amounting to corroboration of any evidence of guilt of the person charged or accused.
(3) In criminal proceedings against any person for an offence the prosecution shall not, without the permission of the court for reasons which it considers just, comment on the fact that that person did not request the assistance of a lawyer or a legal procurator in the course of police investigations before those proceedings.
BOOK SECOND
LAWS OF CRIMINAL PROCEDURE
PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED
Title I Of the Powers and Duties of the Executive Police in respect of Criminal Prosecutions
Sub-title X
TAKING OF SAMPLES, FINGERPRINTING AND OTHER INVESTIGATIVE PROCEDURES
355AX. (3) Where the person arrested requests to consult a lawyer or legal procurator under subarticle (2) the magistrate shall make a record of the fact, date and time of the request and, subject to the provisions of subarticle (4) shall allow the person arrested to consult with a lawyer or legal procurator for such time as the magistrate may deem appropriate in the circumstances of the case.
(4) The magistrate may, on a justified objection by the Police, delay any communication with an advocate or legal procurator if the interests of justice so require or when any of the events mentioned in article 355AT(5) is likely to occur if such communication is allowed immediately:
Provided that where the person arrested has requested to consult a lawyer or legal procurator his consent can only be requested after such consultation has taken place.
BOOK SECOND
LAWS OF CRIMINAL PROCEDURE
PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED
Title II Of the Court of Magistrates
Sub-title I Of the Court of Magistrates as Court of Criminal Judicature
374. (a) the complainant and the defendant shall appear personally on the day appointed for the hearing of the complaint. They may, however, be assisted by advocates or legal procurators;
BOOK SECOND
LAWS OF CRIMINAL PROCEDURE
PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED
Title II Of the Court of Magistrates
Sub-title I Of the Court of Magistrates as Court of Criminal Judicature
375. (a) the accused shall appear personally. He may, however, be assisted by advocates or legal procurators;
BOOK SECOND
LAWS OF CRIMINAL PROCEDURE
PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED
Title II Of the Court of Magistrates
Sub-title I Of the Court of Magistrates as Court of Criminal Judicature
375. (e) the accused may cross-examine the said officer
BOOK SECOND
LAWS OF CRIMINAL PROCEDURE
PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED
Title II Of the Court of Magistrates
Sub-title II Of the Court of Magistrates as Court of Criminal
392. (1) The examination of the accused referred to in article 390(1), shall, without threat or promise, and without oath, be made in the following manner:
(a) the court shall ask him his name and surname, his age, his place of birth and abode, his trade, profession or calling, the name and surname of his father and whether his father is alive or dead;
(b) the court shall ask the accused if and what he wishes to reply to the charge.
BOOK SECOND
LAWS OF CRIMINAL PROCEDURE
PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED
Title II Of the Court of Magistrates
Sub-title II Of the Court of Magistrates as Court of Criminal
392. (2) Before asking any of the above questions, the court shall explain to the accused the nature of the charge preferred against him and shall inform him that he is not obliged to answer any question nor to incriminate himself; that he may, if he so desires, be assisted by advocates or legal procurators and that whatever he says may be received in evidence against him.
BOOK SECOND
LAWS OF CRIMINAL PROCEDURE
PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED
Title II Of the Court of Magistrates
Sub-title II Of the Court of Magistrates as Court of Criminal
395. The depositions of the witnesses and the examination of the accused shall be signed by the magistrate.
BOOK SECOND
LAWS OF CRIMINAL PROCEDURE
PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED
Title II Of the Court of Magistrates
Sub-title II Of the Court of Magistrates as Court of Criminal
399. (2) The accused may, within the term of four working days from any such order, appoint some person to represent him at the examination or process. Such term may, upon good cause being shown, be extended.
BOOK SECOND
LAWS OF CRIMINAL PROCEDURE
PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED
Title II Of the Court of Magistrates
Sub-title II Of the Court of Magistrates as Court of Criminal
400. The accused may, in the course of the inquiry, be assisted by advocates or legal procurators.
BOOK SECOND
LAWS OF CRIMINAL PROCEDURE
PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED
Title II Of the Court of Magistrates
Sub-title II Of the Court of Magistrates as Court of Criminal
401. (1) The inquiry shall be concluded within the term of one month which may, upon good cause being shown, be extended by the President of Malta for further periods each of one month, each such extension being made upon a demand in writing by the court:
Provided that the said term shall not in the aggregate be so extended to more than three months:
Provided further that unless bail has been granted, the accused shall be brought before the court at least once every fifteen days in order that the court may decide whether he should again be remanded in custody.
BOOK SECOND
LAWS OF CRIMINAL PROCEDURE
PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED
Title II Of the Court of Magistrates
Sub-title II Of the Court of Magistrates as Court of Criminal
402. (7) In the cases referred to in subarticles (5) and (6), the inquiry may be continued in the absence of the accused, and if he is not assisted by an advocate or legal procurator, the provisions of article 519 shall apply.
BOOK SECOND
LAWS OF CRIMINAL PROCEDURE
PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED
Title II Of the Court of Magistrates
Sub-title II Of the Court of Magistrates as Court of Criminal
405. (3) The witnesses shall be examined or re-examined in the presence of the accused in order that he may have the opportunity of cross-examining them, and, for such purpose, the court shall order the accused, if in custody, to be brought up, and, if not in custody, to be summoned to appear before it.
BOOK SECOND
LAWS OF CRIMINAL PROCEDURE
PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED
Title II Of the Court of Magistrates
GENERAL PROVISIONS APPLICABLE TO THE COURT OF MAGISTRATES WHETHER AS COURT OF CRIMINAL JUDICATURE OR AS COURT OF CRIMINAL INQUIRY
410. (1) In any proceedings instituted by the Executive Police on the complaint of the injured party, it shall be lawful for the complainant to be present at the proceedings, to engage an advocate or a legal procurator to assist him, to examine or cross-examine witnesses and to produce, in support of the charge, such other evidence as the court may consider admissible.
BOOK SECOND
LAWS OF CRIMINAL PROCEDURE
PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED
Title IV Of the Criminal Court
445. If the accused appears without counsel, the court shall inform him that he has the right to be assisted by counsel.
BOOK SECOND
LAWS OF CRIMINAL PROCEDURE
PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED
Title IV Of the Criminal Court
453. (1) If the accused, in answer to the question prescribed under article 450, states that he is guilty of the offence, the court shall in the most solemn manner warn him of the legal consequences of such statement, and shall allow him a short time to retract it; but if the accused persists in his statement, such statement shall be recorded and the court shall proceed to pass on the accused such sentence as would according to law be passed on an accused convicted of the offence.
Duties of the court. (2) Nevertheless, if there is good reason to doubt whether the
offence has really taken place at all, or whether the accused is guilty of the offence, the court shall, notwithstanding the confession of the accused, order the trial of the cause to be proceeded with as if the accused had not pleaded guilty.
BOOK SECOND
LAWS OF CRIMINAL PROCEDURE
PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED
Title IV Of the Criminal Court
458. (1) When the case for the prosecution is concluded, the accused shall be asked what he has to state in his defence. He shall have the right to make his defence, either personally or by an advocate, and to call and examine his witnesses in the manner provided in the last preceding article, and to produce any other evidence he may have to offer.
(2) If the accused is assisted by more than one advocate, such advocates may divide the duties between them in such a manner that one will make the defence and the other will make the rejoinder, when this is allowed, or, that one will make the defence and rejoinder and the other will examine the witnesses; but neither of them may address the court or the jury after the defence or rejoinder has been made by the other; and the provisions of this subarticle shall apply to every other stage of the proceedings in which the accused is assisted by more than one advocate.
(3) It shall also be lawful for the accused either to make his own defence and leave to his advocate the rejoinder, when this is allowed, or to make the rejoinder notwithstanding that his defence was made by his advocate.
BOOK SECOND
LAWS OF CRIMINAL PROCEDURE
PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED
Title IV Of the Criminal Court
459. The order to be followed in the examination of witnesses shall be as hereunder:
The party calling the witness proceeds to examine him; then the opposite party may, if he so desires, cross-examine him; any juror may then put any question which he may deem necessary; and the court, besides the questions which it may deem proper to put in the course of the examination or cross-examination, may finally put any other question which it shall deem necessary.
BOOK SECOND
LAWS OF CRIMINAL PROCEDURE
PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED
Title IV Of the Criminal Court
459A. (1) The accused who takes the stand to testify shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than the one with which he is accused, or is of bad character, unless -
(a) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of an offence with which he is accused; or
(b) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution, or the deceased victim of the alleged crime; or
(c) he has given evidence which involves in the commission of the offence with which he is being accused, any other person accused in the same proceedings.
(2) In any of the circumstances mentioned in paragraphs (a) to (c) above any record showing any previous convictions of the person charged or accused may be produced in evidence.
BOOK SECOND
LAWS OF CRIMINAL PROCEDURE
PART II OF MATTERS RELATING TO CERTAIN MODES OF PROCEDURE AND TO CERTAIN TRIALS
Title III Of Counsel for the Accused
570. (1) The Advocate for Legal Aid shall gratuitously undertake the defence of any accused who has briefed no other advocate or who has been admitted to sue or defend with the benefit of legal aid in any court mentioned in this Code.
(2) The request for the assistance of the Advocate for Legal Aid or for the benefit of legal aid shall be made either by application or orally to the Advocate for Legal Aid.
(3) Article 911(4), (5) and (6) of the Code of Organization and Civil Procedure shall mutatis mutandis apply to the Advocate for Legal Aid.
(4) Where any court is informed by the accused that he has been unable to brief any advocate or that he wishes to avail himself of the benefit of legal aid that court shall cause the declaration made by the accused to be registered in the records of the case and shall order that such declaration, together with the details of the accused, be served on the Advocate for Legal Aid who within two working days shall file a reply indicating if the request of the accused has been accepted and if so the name of the Advocate for Legal Aid who will be representing the accused:
Provided that in the case of summary proceedings before the Court of Magistrates acting as a Court of Criminal Judicature the Court shall appoint the advocate whose turn it is from the panel of advocates mentioned in article 91 of the Code of Organization and Civil Procedure to assist the accused in those proceedings as well as in any appeal from any decision given in those proceedings provided that before filing any such appeal he shall consult the Advocate for Legal Aid who may, at any time, decide to take over the appeal.
(5) The Advocate for Legal Aid may only decline his aid on any ground which, in the opinion of the court, prima face justifies the refusal of his aid. In such event the Court shall order that the accused be represented by another advocate, who is not himself excusable, to be appointed by the Court on the recommendation of the Advocate for Legal Aid from the panel of advocates mentioned in article 91 of the Code of Organization and Civil Procedure provided that the court may in exceptional circumstances to be stated in its decree order any other advocate to take up the defence of the accused.
(6) The advocate appointed by the court in the exceptional circumstances referred to in subarticle (5) shall render his services gratuitously.
Article 55
Rights of persons during an investigation
1. In respect of an investigation under this Statute, a person:
(a) Shall not be compelled to incriminate himself or herself or to confess guilt;
(b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
(c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and
(d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.
2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned:
(a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court;
(b) To remain silent, without such silence being a consideration in the determination of guilt or innocence;
(c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and
(d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.
Article 63
Trial in the presence of the accused
1. The accused shall be present during the trial.
2. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.
Article 66
Presumption of innocence
1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.
2. The onus is on the Prosecutor to prove the guilt of the accused.
3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.
Article 67
Rights of the accused
1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;
(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;
(c) To be tried without undue delay;
(d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute;
(f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks;
(g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;
(h) To make an unsworn oral or written statement in his or her defence; and
(i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.
2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.