CRIMINAL PROCEDURE CODE

PART I
ON THE GENERAL PART

TITLE III
ON PROCEDURAL PARTICIPANTS

CHAPTER VI
ON SUSPECTS, DEFENDANTS AND CONVICTS

Article 60
Rights of the defendant

In addition to other rights enshrined in the law, the defendant enjoys the following rights :

(a) when under arrest, to be presented to the judge for the first questioning within seventy two hours from the arrest ;

(b) to be informed of the acts being imputed to him or her and of the rights to which he or she is entitled, whenever asked to make statements ;

(c) to freely decide to make or not to make statements and to do it, even at his or her own request, at any stage of the investigation or of the trial hearing, except as provided in paragraph 61(a) ;

(d) to be assisted by a defender, where the law determines compulsory assistance or where he or she so requires ;

(e) a defender appointed by the court, in the cases referred to in paragraph 68, if he or she has not done so ;

(f) to freely communicate with the defender, even where the defendant is under arrest or detention ;

(g) to have his or her designated family member informed, when arrested or detained ;

(h) to provide evidence and request any action deemed necessary for his or her defence ;

(i) to appeal, under the terms of the law, against any decision that is unfavourable to him or her.

CRIMINAL PROCEDURE CODE

PART I
ON THE GENERAL PART

TITLE III
ON PROCEDURAL PARTICIPANTS

CHAPTER VI
ON SUSPECTS, DEFENDANTS AND CONVICTS

Article 62
General rules for questioning

1. Even if the defendant is under arrest or detention, he or she shall be released during questioning, exception being made to the strictly necessary precautionary measures to avoid the danger of escape or the practice of any acts of violence ;

2. Methods and techniques, which might restrict or impair the freedom of will or of decision, or the ability to recall and reason, shall not be employed, even with the consent of the defendant.

3. Questioning starts with the reading and explanation of the rights and duties of the defendant, with the express warning that failure to comply with paragraph 61(a) may cause him or her to incur criminal liability.

4. The defendant is subsequently informed, in a clear and precise fashion, of the acts being imputed to him or her and, where this might not impact negatively the investigation, of the evidence against him or her; questioning shall then be conducted, should the defendant wish to make any statements, the latter being advised that silence shall not be detrimental to him or her.

Article 63
Persons to conduct and attend the first questioning of the defendant under arrest

1. The police authority who arrests a person in flagrante delicto must present that person for the first judicial questioning as soon as possible, but under no circumstances shall they do so after seventy two hours from the arrest.

2. The judge has exclusive competence to conduct the first questioning after the defendant has been arrested, this questioning aiming, above all, to apply the adversarial principle in relation to the prerequisites for the arrest and the conditions for the execution thereof.

3. The questioning is attended by the person conducting it, the public prosecutor, the defender, the interpreter and the official tasked with taking precautionary security measures, when required, in addition to the official entrusted with putting the statements to writing.

Article 64
Further questioning

1. Any further questioning is undertaken by the entity with competence to conduct the procedural phase in which it occurs, or by a person with delegated competence to undertake it.

2. Questioning at the trial hearing shall be in compliance with article 62, in addition to specific provisions on trial hearings.

Article 65
Status of convict

1. The status of convict is assumed by any person against whom a final convicting decision has been pronounced by a court.

2. A convict enjoys the same rights and is subject to the same duties as those of a defendant, except to the extent that they are inconsistent with the fact that he or she has been definitively convicted.

CRIMINAL PROCEDURE CODE

PART I
ON THE GENERAL PART

TITLE III
ON PROCEDURAL PARTICIPANTS

CHAPTER VII
ON DEFENDERS

Article 68
Compulsory assistance

Assistance by a defender is compulsory :

(a) in the first questioning of a defendant held under arrest or detention ;
(b) from the time the indictment is presented until such a time as a decision is rendered final, particularly in lodging an appeal ;
(c) in filing claims ;
(d) in such other cases as stated in the law.

CRIMINAL PROCEDURE CODE

PART I
ON THE GENERAL PART

TITLE IV
ON PROCEDURAL ACTS

CHAPTER I
ON GENERAL PROVISIONS

Article 75
Public character of proceedings

1. A criminal proceeding is open to the public from the time the indictment is presented.

2. The public character of a proceeding entails the right of :
(a) the media and the general public to attend the proceedings ;
(b) a detailed account of the content of the proceedings by the media ;
(c) access to and extraction of copies, abstracts and certificates of any portion of the records under the terms of sub-article 77.1;

3. The reproduction of briefs or of documents attached to the records, and the making of audio and/or video recordings in relation to proceedings, require prior authorisation from the court.

Article 76
Limitations on the public character of proceedings

1. Exceptionally, the court may, in entire or in part, restrict the public character of a proceeding, provided that the specific circumstances surrounding the case so advise, as a way of preserving other values, notably public morals and human dignity.

2. A limitation on the public character of a proceeding shall never cover the reading of a sentence or the decision on an appeal.

3. A decision by the court to bar some people from attending a proceeding, in entire or in part, namely as a way of sanctioning incorrect behaviours or of guaranteeing the security of the venue of the proceeding and/or of the people taking part therein, shall not be taken to be a restriction on the public character of the proceeding.

4. The court may also bar any person aged less than 18 years from attending the proceeding, and this is not to be construed as a restriction on the public character of the proceeding.

5. In the case of a proceeding in connection with a sexual criminal offence against a person aged less than 18 years, the proceeding shall, as a rule of thumb, be devoid of its public character.

Article 77
Access to the records and extraction of certificates

1. Subject to the preceding articles, the public prosecutor, the suspect, the defendant and the aggrieved person may have access to the records and obtain a certificate or copy there from.

2. Where it becomes evident that that request may not be attended to from a legal perspective, the performance of such acts shall be dependent upon prior authorisation from the judicial authority conducting the ongoing procedural phase.

3. Subject to the previous articles, access to, and the obtaining of a certificate or copy from, the records by other persons shall require the due demonstration of a legitimate interest and prior authorisation from the judicial authority conducting the ongoing procedural phase.

CRIMINAL PROCEDURE CODE

PART I
ON THE GENERAL PART

TITLE V
ON PROOF

CHAPTER I
GENERAL PROVISIONS

Article 110
Absolute prohibition of evidence

1. Proof obtained through torture or duress in general or by offences against the physical or moral integrity of a person is absolutely prohibited.

2. Offensive to the physical or moral integrity of a person is any proof obtained, even with the consent of the person concerned, by :

(a) impairing the free will or the freedom of decision through mistreatment, bodily harm, the employment of methods of any nature, hypnosis or the use of cruel or misleading means ;
(b) impairing, by any means, the ability to recall or to reason ;
(c) the use of force in cases other than the ones, and beyond the limits, permitted by law ;
(d) threatening with a legally inadmissible measure, including refusing or restricting the a benefit contemplated in the law ;
(e) promising a legally inadmissible advantage.

CRIMINAL PROCEDURE CODE

PART I
ON THE GENERAL PART

TITLE V
ON PROOF

CHAPTER I
GENERAL PROVISIONS

Article 114
Discretionary investigation

1. There is no burden of proof on the defendant in a criminal case.

2. It is incumbent upon the public prosecutor to sustain the indictment in trial and the court may order, either on a discretionary basis or at request, that any evidence the knowledge of which is deemed necessary to uncover the truth and to make a proper decision on the case be produced, namely in respect of civil liability.

CRIMINAL PROCEDURE CODE

PART I
ON THE GENERAL PART

TITLE V
ON PROOF

CHAPTER II
ON EVIDENCE

SECTION II
ON STATEMENTS BY THE DEFENDANT

Article 117
General rule

1. Statements by the defendant shall constitute evidence only where, after the latter is advised that he or she may refrain from doing so, the defendant decides to make such statements, which can be made at all times until the closure of the trial hearing.

2. If the defendant decides to make statements, he or she does not take an oath and may, without any justification, refuse to answer some of the questions only.

3. Articles 62 to 64 are correspondingly applicable.

4. Statements by the defendant are assessed at the court’s discretion.

CRIMINAL PROCEDURE CODE

PART I
ON THE GENERAL PART

TITLE VI
ON RESTRICTIVE AND PROPERTY-GUARANTEE MEASURES

CHAPTER II
RESTRICTIVE MEASURES

SECTION I
APPLICABLE MEASURES AND RESPECTIVE RULES

Article 195
Duration of pre-trial detention and other measures

1. Pre-trial detention may not exceed, from its beginning:

(a) one year without the presentation of an indictment ;
(b) two years without a first-instance conviction ;
(c) three years without a final conviction except that an appeal is filed over constitutionality matters, in which case the time limit is extended to three and a half years.

2. The abovementioned time limits are also increased by six months where the case proves to be exceptionally complex, and a substantiated order in this respect shall be issued by the judge.

3. Once the time limits mentioned in the previous sub-articles have elapsed, the defendant must be released immediately, except where the defendant is due to remain in prison on account of another case.

4. The restrictive measures provided in articles 192 and 193 shall lapse where, from the beginning of their execution, the time limits referred to in sub-article 195.1, increased twice as much, have expired.

CRIMINAL PROCEDURE CODE

PART I
ON THE GENERAL PART

TITLE VI
ON RESTRICTIVE AND PROPERTY-GUARANTEE MEASURES

CHAPTER II
RESTRICTIVE MEASURES

SECTION II
REFUTING IMPOSED RESTRICTIVE MEASURES

Article 205
Habeas corpus

1. Any person who finds himself or herself under unlawful arrest or detention may, directly or through any other person fully exercising his or her political rights, request the Supreme Court of Justice to grant him or her a writ of habeas corpus.

2. In order for the arrest or detention of a person to be considered unlawful, it must be based on one of the following facts :

(a) be carried out or ordered by an entity not having the competence to do so ;
(b) be motivated by a fact in which regard arrest or detention is not permitted by law ;
(c) expiry of the time limits for the duration thereof, namely the seventy-two-hour deadline for the presentation of the person under arrest or detention for his or her first judicial questioning ;
(d) the person is kept on premises other than the ones permitted by law.

CRIMINAL PROCEDURE CODE

PART II
ON ORDINARY PROCEDURES

TITLE II
ON TRIALS

CHAPTER II
ON HEARINGS

SECTION I
GENERAL PROVISIONS

Article 246
The adversarial nature of proceedings

The court shall ensure the observance of the adversarial nature of the proceeding, namely before a decision on incidental matters is made and in relation to the presentation or examination of any proofs at the hearing, under the penalty of nullity.

CRIMINAL PROCEDURE CODE

PART II
ON ORDINARY PROCEDURES

TITLE II
ON TRIALS

CHAPTER II
ON HEARINGS

SECTION I
GENERAL PROVISIONS

Article 247
Public character of hearings

1. Hearings shall have a public character, under the penalty of irreparable nullity.

2. Articles 75 and 76 are correspondingly applicable.

CRIMINAL PROCEDURE CODE

PART II
ON ORDINARY PROCEDURES

TITLE II
ON TRIALS

CHAPTER II
ON HEARINGS

SECTION I
GENERAL PROVISIONS

Article 253
Attendance of defendants

1. The presence of the defendant at the hearing is compulsory, except as otherwise stated in the law.

2. It is the responsibility of the judge to take the appropriate and necessary action to prevent the defendant from leaving the hearing before it comes to a close.

3. Once the defendant has been questioned about his or her identification, he or she may be removed from the courtroom on the grounds of repeated breaches of the rules of conduct at the hearing.

4. The defendant may also be removed from the courtroom for a period of time deemed necessary when his or her presence may contribute to inhibiting or intimidating a person who is to make statements.

5. Even if the defendant is removed from the courtroom, he or she must hear the reading of the sentence.

CRIMINAL PROCEDURE CODE

PART II
ON ORDINARY PROCEDURES

TITLE II
ON TRIALS

CHAPTER II
ON HEARINGS

SECTION II
PRELIMINARY ACTS

Article 256
Absence of defendants

1. Where the defendant fails to appear at the hearing, having been duly notified, the hearing shall be postponed before proofs begin to be presented.

2. Failure to justify the absence within five days implies the payment of a fine and the issuance of an arrest warrant in order to ensure the defendant’s presence at the hearing to be held on the reset date.

3. Should the defendant justify his or her absence, he or she shall be notified of the reset date for the trial with the warning that, in the case of a new absence, the trial shall be held in absentia and that he or she shall, for all possible purposes, be represented by his or her defender.

CRIMINAL PROCEDURE CODE

PART II
ON ORDINARY PROCEDURES

TITLE II
ON TRIALS

CHAPTER II
ON HEARINGS

SECTION II
PRELIMINARY ACTS

Article 258
Waiving the attendance of a defendant

Where a defendant is practically unable to appear at the hearing due to advanced age, serious disease or residence overseas, he or she may request or agree that the hearing be held in his or her absence, in which case the defendant shall be represented by his or her defender for all possible purposes.

CRIMINAL PROCEDURE CODE

PART II
ON ORDINARY PROCEDURES

TITLE II
ON TRIALS

CHAPTER II
ON HEARINGS

SECTION III
ON PRODUCTION OF PROOFS

Article 268
Statements by the defendant

3. Where the defendant wishes to make statements as to the grounds of the action, the judge shall ask him or her whether he or she admits or denies the facts set forth in the indictment.

CRIMINAL PROCEDURE CODE

PART II
ON ORDINARY PROCEDURES

TITLE II
ON TRIALS

CHAPTER II
ON HEARINGS

SECTION III
ON PRODUCTION OF PROOFS

Article 268
Statements by the defendant

7. The defendant may, spontaneously or on the recommendation of the defender, refuse to respond to some or all of the questions asked, without detriment to himself or herself.

CRIMINAL PROCEDURE CODE

PART II
ON ORDINARY PROCEDURES

TITLE II
ON TRIALS

CHAPTER II
ON HEARINGS

SECTION III
ON PRODUCTION OF PROOFS

Article 271
Statements by witnesses

1. Witnesses are questioned, one after the other, by the order in which they have been indicated, unless the judge reasonably decides otherwise.

2. A witness is questioned by the person who has indicated him or her, and shall then be cross-examined by the remaining procedural participants. The witness may be questioned again if issues that have not been addressed in the initial questioning arise during the cross-examination.

3. The judges may, at all times, ask any questions deemed relevant to the discovery of the truth.

4. The witnesses indicated by a defendant may only be questioned by the defenders of the other defendants if those defenders request the judge to do so and the latter deems it necessary for a reasonable adjudication of the case.

CRIMINAL PROCEDURE CODE

PART IV
ON FINAL PROVISIONS

Article 354
Requirements for confirmation

1. In order for a criminal sentence imposed by a foreign court to be confirmed, the following requirements need to be met :

(d) that the defendant has been assisted by a defender and, where the defendant was not familiar with the language used in the proceeding, also by an interpreter ;

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.