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CRIMINAL CODE OF THE REPUBLIC OF MALTA

BOOK SECOND

LAWS OF CRIMINAL PROCEDURE 

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Sub-title VI

POWERS OF ARREST AND DETENTION

355V. Where there are lawful grounds for the arrest of a person,
the Police may request a warrant of arrest from a Magistrate, unless
in accordance with any provision of law the arrest in question may
be made without a warrant.


355W. (1) Any person not being a police officer may arrest
without warrant anyone who is in the act of committing or has just
committed any crime concerning the peace and honour of families
and morals, any crime of wilful homicide or bodily harm, or any
crime of theft or of wilful unlawful entry or damage to property.
(2) The person making any arrest under sub-article (1) shall
without delay inform the Police of the fact of the arrest and shall
exercise such power only until it is strictly necessary for the Police
to take over the person arrested.


355X.(1) Any police officer may arrest without warrant anyone
who is in the act of committing or has just committed a crime
punishable with imprisonment, or whom he reasonably suspects to
be about to commit or of having just committed such a crime.
(2) Any police officer may also proceed to the arrest of any
person in respect of whom an alert for his arrest has been entered in
the Schengen Information System.
(3) Any police officer may also proceed to the arrest of any
person who knowingly, or after due warning, obstructs or disturbs
him in the execution of his duties, or disobeys his lawful orders.
(4) The powers mentioned in sub-articles (1), (2) and (3) shall
only be exercised until it is strictly necessary for the police officer
to convey the person arrested to a police station and deliver him to
a superior officer not below the rank of sergeant.
(5) The provisions of this article shall not apply to any crime
punishable under the Press Act.


355XX. Any police officer may detain without warrant any
person who is indicated in an alert in the Schengen Information
System as a missing person or a person who, for his own protection
or in order to prevent threats, needs temporarily to be placed under
police protection.


355Y. (1) In the case of contraventions, or of crimes not subject
to the punishment of imprisonment, excepting always the crimes
punishable under the Press Act, it shall be lawful for the Police to
proceed to the arrest of any person without a warrant, provided
that -
(a) the person be detected in the very act of committing
the offence; or
(b) the arrest be necessary to prevent the commission of
an offence in respect of which the Police may institute
criminal proceedings without the complaint of the
injured party; and
(c) in either of the cases mentioned in paragraphs (a) or
(b) one of the conditions mentioned in article 355Z is
satisfied.
(2) A person shall be deemed to be detected in the very act of
committing an offence, if he is caught, either in the act of
committing the offence, or while being pursued by the injured party
or by the public hue and cry.


355Z. The general arrest conditions are -
(a) that the identity of the person is unknown or cannot be
readily ascertained by the police officer; or
(b) there is a doubt whether the particulars furnished by
the person are true; or
(c) that the person has not furnished a satisfactory address
for service, or there are doubts about whether the
address provided is satisfactory for service, or that at
least some other person may according to law receive
service on his behalf at the address given; or
(d) that the arrest is necessary to prevent the person -
(i) causing physical harm to himself or to any other
person; or
(ii) suffering physical injury; or
(iii) causing loss or damage to property; or
(iv) committing an offence against public decency;
or
(v) causing an unlawful obstruction on any public
road; or
(e) that the police officer has reasonable grounds for
believing that the arrest is necessary to protect a child
or any other vulnerable person.


355AB. The officer or any other person authorised by law
making an arrest shall not use any harshness, bond or other means
of restraint unless indispensably required to secure, or rendered
necessary by the insubordination of the person arrested.


355AC. (1) When a person is arrested, the arrest is not lawful
unless the person arrested is informed that he is under arrest, even
though the arrest may be obvious.
(2) The arrest is not lawful unless the person arrested is
informed at the time of his arrest or detention, in a language that he
understands, of the reasons for his arrest or detention:
Provided that if an interpreter is necessary and is not
readily available or if it is otherwise impracticable to comply with
the provisions of this sub-article at the time of the person’s arrest or
detention, such provisions shall be complied with as soon as
practicable:
Provided further that, in any case, where the arrest is made
by a private person under the provisions of article 355V the giving
of the information may be delayed until the person arrested is taken
over by the Police.


355AD. (1) Where, in the course of an investigation, a person
attends voluntarily at, or accompanies a police officer to, a police
station or office, that person shall be free to leave at any time,
unless and until he is informed that he is under arrest.
(2) Where an inspector of Police has a reasonable suspicion
that the person who attended voluntarily at the police station or
office may have committed an offence subject to imprisonment, he
may arrest such person forthwith without warrant and inform him
accordingly. The time of the arrest shall be immediately recorded
and immediate notice thereof shall be given to a Magistrate.
(3) The Police may, orally or by a notice in writing, require any
person to attend at the police station or other place indicated by
them to give such information and to produce such documents as
the Police may require and if that person so attends at the police
station or place indicated to him he shall be deemed to have
attended that police station or other place voluntarily. The written
notice referred to in this sub-article shall contain a warning of the
consequences of failure to comply, as are mentioned in sub-article
(5).
(4) Any person who is considered by the police to be in
possession of any information or document relevant to any
investigation has a legal obligation to comply with a request from
the police to attend at a police station to give as required any such
information or document:
Provided that no person is bound to supply any information
or document which tends to incriminate him.
(5) A person who fails to comply with a notice in writing as is
referred to in sub-article (3) or who fails, upon being so requested,
even if only orally, to accompany voluntarily a police officer to a
police station or other place indicated by the police officer for any
purpose mentioned in the said sub-article (3) shall be guilty of a
contravention punishable with detention and shall be liable to be
arrested immediately under warrant.
(6) The notice mentioned in sub-article (3) may be served with
urgency in cases where the interests of justice so require.
(7) A person who attends voluntarily as mentioned in subarticle
(3) may be kept apart from any other person, but shall not be
kept in any place normally used for the detention of arrested
persons.


355AE. (1) When a police officer arrests a person at a place
other than a police station the arrested person shall be taken to the
nearest police station and where the arresting officer is an officer
below the rank of inspector he shall forthwith report the arrest to an
officer not below the rank of inspector. In any case the inspector or
officer in charge of that police station shall also be informed.
(2) Where there are grounds for the continuation of the arrest
the person arrested shall be taken to a designated police station as
soon as practicable and in no case later than six hours from the time
of the arrest.
(3) The taking of an arrested person to a police station in
accordance with the foregoing provisions of this article may be
delayed if that person’s presence is required elsewhere for the
purpose of any investigation which may be necessary.
(4) Where a person is released following arrest the police
officer ordering release shall record in writing the fact stating
reasons.


355AF. (1) A police officer may immediately search the person
arrested:
(a) if the police officer has reasonable grounds for
believing that the arrested person may present a danger
to himself or others; or
(b) for anything which the arrested person might use to
assist him to escape from custody; or
(c) for anything which might be evidence related to an
offence.
(2) The provisions of article 353 of this Code shall apply to
searches under this article.

[...]

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.
(2) Before ordering the release from custody of a person under
sub-article (1) the custody officer shall inform the investigating
officer and a Magistrate and the final decision shall be taken by the
Magistrate.
(3) A person whose release is ordered under the provisions of
sub-article (1) shall be released unconditionally unless it appears to
the custody officer -
(a) that there is need for further investigation of any
matter in connection with which he was detained at
any time during the period of his detention; or
(b) that proceedings may be taken against him in respect
of such matter,
and if it so appears, he shall be released subject to the conditions,
reduced to writing and signed by the person to be released, that he
will not attempt or do anything to leave Malta without the authority
of the investigating officer under whose authority he was arrested
and that he will attend at such police station at such time as the
custody officer may appoint and, or that he will attend before the
Court of Magistrates at such time and such place as the court may
appoint.
(4) Where a custody officer has granted bail to a person subject
to a duty not to attempt or do anything to leave Malta without
authority or to appear at a police station, the custody officer may
give notice in writing to that person that the condition not to
attempt or do anything to leave Malta without authority no longer
applied or that his attendance at the police station is not required.
(5) Any person who fails to comply with any condition
imposed upon him upon his release as provided in sub-article (3)
shall be guilty of a contravention.
(6) A police officer may arrest without a warrant any person
who, having been conditionally released under sub-article (3)
subject to a duty not to attempt or do anything to leave Malta
without authority or to attend a police station or subject to a duty to
appear before the Court of Magistrates, attempts or does anything
to leave Malta without authority or fails to attend at that police
station or before the Court of Magistrates at the time appointed for
him to do so.
(7) For the purposes of this sub-title a person who returns to a
police station to answer to bail or is arrested under sub-article (6)
shall be treated as arrested for the offence under sub-article (5) and
for the offence in connection with which he was granted bail and
the provisions of this article shall apply to such person.
(8) The conditions made under sub-article (3) shall not remain
in force for more than three months from the date on which they
were imposed unless they are renewed by a Magistrate for further
periods of three months each period upon an application by the
Police which shall be served for his reply upon the person on whom
the conditions were imposed.
(9) At any time during which the conditions made under subarticle
(3) are in force the person on whom those conditions were
imposed may by an application to be served on the Police for a
reply request a Magistrate that those conditions be removed or
modified.
(10) The Minister may issue guidelines to be followed by
custody officers in the exercise of their discretion to impose
conditions under sub-article (3).

355AM. (1) At every designated place of detention the
Commissioner shall appoint one or more custody officers not below
the rank of sergeant who, in matters of detention, shall comply with
any orders of a Magistrate.
(2) Any officer of any rank may perform the functions of a
custody officer at a designated place of detention if a custody
officer is not readily available to perform them.
(3) Where the custody officer who is called upon to carry out
any of his functions with respect to a person in police detention is,
at the time when the function falls to be performed, involved in the
investigation of an offence for which the person is in police
detention such function shall be carried out by another custody
officer or, if no such other custody officer is available, by the next
most senior police officer who happens to be available at the time.
(4) In this article and elsewhere in this sub-title "designated
place of detention" means such place designated by the Minister
where a person may be detained for more than six hours.


355AN. The custody officer shall perform such functions as may
be assigned to him by this Code or by any other law.


355AO. Where an arrested person is taken to a police station
which is not a designated place of detention the functions in
relation to him which would otherwise fall to be performed by a
custody officer shall be performed:
(a) by an officer not below the rank of sergeant who is not
involved in the investigation of an offence for which
the arrested person is in detention, if such an officer is
readily available; and
(b) if no such officer is readily available, by the officer
who took the arrested person to the police station or by
the most senior police officer at the police station at
the time.


355AP. Where the arresting officer or the custody officer has a
reasonable suspicion that the person arrested may have concealed
on his person any drug the unlawful possession of which would
constitute a criminal offence or any other item which a custody
officer is authorised by this Code or by any other law to seize from
the possession of an arrested person, the said officer may request a
Magistrate to order an intimate search of the person arrested.


355AQ. (1) Upon a request for an order under article 355AP the
Magistrate shall appoint an expert to carry out the search under
such safeguards as he may consider necessary for the purpose of
decency and to report to him on his findings. A copy of the report
shall be communicated without delay to the arresting or custody
officer as the case may be.
(2) A person shall not be appointed an expert for the purpose of
carrying out an intimate search on a person of the opposite sex
unless the expert is a medical practitioner and the person to be
searched consents thereto in writing.


355AR. Anything found as a result of an intimate search under
the foregoing articles may be temporarily retained by the expert
and may subsequently be seized by order of the Magistrate, and a
receipt therefore shall be given to the detained person. The
Magistrate may authorise the delivery against receipt of anything
so seized to the police officer investigating the person intimately
searched.

Sub-title IX
RIGHT TO LEGAL ASSISTANCE AND OTHER RIGHTS
DURING DETENTION


355AS. (1) The suspect or accused person shall, at his request,
be allowed to consult a medical practitioner of his choice and, if
such medical practitioner is not readily available, any other medical
practitioner.
(2) Immediately upon arrest and without undue delay, the
Executive Police or any other law enforcement or judicial authority
shall inform the suspect or an arrested person of such a right.
(3) A record shall be kept that the suspect or accused person
has been duly informed of such right by the Executive Police or by
any other law enforcement or judicial authority.
(4) The words "the suspect" and "the accused person" in this
article have the same meaning assigned to them by article
355AT(2).


355AT. (1) This Sub-title transposes the provisions of Directive
2013/48/EU of the European Parliament and of the Council of 22
October 2013 on the right of access to a lawyer in criminal
proceedings and in European arrest warrant proceedings, and on the
right to have a third party informed upon deprivation of liberty and
to communicate with third persons and with consular authorities
while deprived of liberty, published in the Official Journal of the
European Union on 6 November 2013 (L 294/1).
(2) This Sub-title lays down minimum rules concerning the
rights of:
(a) the suspect (hereinafter in this Sub-title referred to as
"the suspect"), that is, a person who is detained or
arrested by the Executive Police or any other law
enforcement or judicial authority where such person
has not been charged before a court of justice of
criminal jurisdiction and who is being questioned by
the Executive Police or any other authority as
aforesaid in relation to any criminal offence;
(b) a person charged or accused of having committed a
criminal offence (hereinafter referred to in this Subtitle
as "the accused person");
(c) a person subject to proceedings pursuant to Council
Framework Decision of 13 June 2002 on the European
arrest warrant and the surrender procedures between
Member States (2002/584/JHA) published in the
Official Journal on 18 July 2002 (L 190/1), hereinafter
referred to as "the European arrest warrant
proceedings".
(3) The persons mentioned in sub-article (2) shall enjoy the
following rights:
(a) to have access to a lawyer;
(b) to have a third party informed of the deprivation of
their liberty; and
(c) to communicate with third persons and with consular
authorities whilst deprived of their liberty.
(4) For the purpose of this Sub-title, the expression "lawyer"
means an advocate or a legal procurator who is authorised by law to
exercise that respective profession in terms of law.


355AU. (1) This Sub-title applies to suspects or accused persons
in criminal proceedings from the time when they are made aware
by the Executive Police or by any other law enforcement or judicial
authority, by official notification or otherwise, that they are
suspected or accused of having committed a criminal offence, and
irrespective of whether they are deprived of liberty.
(2) This Sub-title applies until the conclusion of the
proceedings, which is understood to mean the final determination
of the question whether the suspect or the accused person has
committed an offence, including, where applicable, sentencing and
the resolution of any appeal.
(3) This Sub-title applies also to persons subject to European
arrest warrant proceedings in terms of Framework Decision 2002/
584/JHA referred to in article 355AT(2)(c) (hereinafter referred to
as "the requested persons") from the time of their arrest in
accordance with article 355AUJ.
(4) This Sub-title also applies, under the same conditions as
provided for in sub-article (1), to persons other than the suspect or
the accused person who, in the course of questioning by the
Executive Police or by another law enforcement or judicial
authority, become suspects or accused persons.
(5) Without prejudice to the right to a fair trial, in respect of
minor offences -
(a) where the law provides for the imposition of a sanction
by an authority other than a court having jurisdiction
in criminal matters, and the imposition of such a
sanction may be appealed or referred to such a court;
or
(b) where deprivation of liberty cannot be imposed as a
sanction,
this Sub-title shall only apply to the proceedings before a court
having jurisdiction in criminal matters:
Provided that, in any event, this Sub-title shall fully apply
where the suspect or accused person is deprived of liberty,
irrespective of the stage of the criminal proceedings.


355AUA. (1) The suspect or the accused person shall have the
right of access to a lawyer in such time and in such a manner so as
to allow him to exercise his rights of defence practically and
effectively.
(2) The suspect or the accused person shall have access to a
lawyer without undue delay. In any event, the suspect or the
accused person shall have access to a lawyer from whichever of the
following points in time is the earliest:
(a) before they are questioned by the Executive Police or
by another law enforcement or judicial authority in
respect of the commission of a criminal offence;
(b) upon the carrying out by investigating or other
competent authorities of an investigative or other
evidence-gathering act in accordance with sub-article
(8)(e);
(c) without undue delay after deprivation of liberty;
(d) where they have been summoned to appear before a
court having jurisdiction in criminal matters, in due
time before they appear before that court.
(3) A request for legal assistance shall be recorded in the
custody record together with the time when 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.
(4) Once a request for legal assistance is made, the suspect or
the accused person shall be provided with a list of lawyers drawn
up by the Chamber of Advocates and the Chamber of Legal
Procurators and submitted on a yearly basis to the Executive Police
and to any other law enforcement and judicial authority, from
which the suspect or the accused person may select a lawyer of his
own choice. Alternatively, the suspect or the accused person may
elect to be assisted by the Advocate for Legal Aid in which case the
Advocate for Legal Aid shall assign a lawyer for this purpose.
(5) Without prejudice to the provisions of article 355AUI(3),
any police officer who indicates or attempts 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 as a consequence of a finding of guilt in respect of such an
offence or in lieu of prosecution for such an offence in accordance
with any disciplinary regulations in force from time to time.
(6) Where the person detained chooses not to seek legal
assistance the Executive Police, investigating officer or any other
law enforcement or judicial investigating authority shall record this
fact in writing in the presence of two witnesses and thereupon
questioning may proceed immediately. It shall not be admissible for
the prosecution to comment during any proceedings before a court
of justice of criminal jurisdiction on the fact that the suspect or the
accused person did not avail himself of the right to legal assistance
in the course of his detention under arrest.
(7) Where in any proceedings before a court of justice of
criminal jurisdiction against a person for an offence, evidence is
given that the suspect or the accused person -
(a) at any time before he was charged with the offence, on
being questioned by the Executive Police or by any
other law enforcement or judicial authority 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
suspect or the accused person could reasonably have been expected
to mention when so questioned, charged or informed, as the case
may be, no inference may be drawn from the suspect’s or the
accused person’s failure to mention facts which may be considered
as evidence of guilt or as amounting to corroboration of any
evidence of guilt of the suspect or the person accused.
(8) The right of access to a lawyer shall entail the following:
(a) the suspect or the accused person, if he has elected to
exercise his right to legal assistance, and his lawyer,
shall be informed of the alleged offence about which
the suspect or the accused person is to be questioned.
Such information shall be provided to the suspect or
the accused person prior to the commencement of
questioning, which time shall not be less than one hour
before questioning starts;
(b) the suspect or the accused person shall have the right
to meet in private and communicate with the lawyer
representing him, including prior to questioning by the
police or by another law enforcement or judicial
authority;
(c) the suspect or the accused person shall have the right
for his lawyer to be present and participate effectively
when questioned. Such participation may be regulated
in accordance with procedures which the Minister
responsible for Justice may by regulations establish,
provided that such procedures shall not prejudice the
effective exercise and essence of the right concerned.
Where a lawyer participates during questioning, the
fact that such participation has taken place shall be
noted using where possible in the opinion of the
interviewer audiovisual means in terms of paragraph
(d):
Provided that the right of the lawyer to participate
effectively shall not be interpreted as including a right
of the lawyer to hinder the questioning or to suggest
replies or other reactions to the questioning and any
questions or other remarks by the lawyer shall, except
in exceptional circumstances, be made after the
Executive Police or other investigating or judicial
authority shall have declared that it has no further
questions;
(d) questioning, all answers given thereto and all the
proceedings related to the questioning of the suspect or
accused person, shall where possible in the opinion of
the interviewer be recorded by audio-visual means and
in such case a copy of the recording shall be handed
over to the suspect or the accused person following the
conclusion of the questioning. Any such recording
shall be admissible in evidence, unless the suspect or
the accused person alleges and proves that the
recording is not the original recording and that it has
been tampered with. No transcription need be made of
the recording when used in proceedings before any
court of justice of criminal jurisdiction, nor need the
suspect or the accused person sign any written
statement made following the conclusion of the
questioning once all the questions and answers, if any,
are recorded on audiovisual means;
(e) the suspect or the accused person shall have the right
for his lawyer to attend the following investigative or
evidence-gathering acts if the suspect or accused
person is required or permitted to attend the act
concerned:
(i) identity parades;
ii) confrontations;
(iii) reconstructions of the scene of an offence.
(9) General information to facilitate the briefing of a lawyer by
suspects or accused persons shall be made available in terms of
sub-article (4) or such other procedure as the Minister responsible
for Justice may by regulations establish.
(10) Notwithstanding the provisions of this Sub-title concerning
the mandatory presence of a lawyer, the Executive Police or any
other law enforcement or judicial authority shall ensure that
suspects or accused persons who are deprived of liberty shall be in
a position to exercise effectively their right of access to a lawyer,
unless they have waived that right in accordance with article
355AUG.
(11) In exceptional circumstances and only at the pre-trial stage,
a temporary derogation may be made from the application of the
right provided for in sub-article (2)(c) where the geographical
remoteness of the suspect or the accused person makes it
impossible to ensure the right of access to a lawyer without undue
delay after deprivation of liberty.
(12) In exceptional circumstances and only at the pre-trial stage,
a temporary derogation from the application of the rights provided
for in sub-article (8) may be made to the extent justified in the light
of the particular circumstances of the case, on the basis of one of
the following compelling reasons:
(a) where there is an urgent need to avert serious adverse
consequences for the life, liberty or physical integrity
of a person;
(b) where immediate action by the investigating
authorities is imperative to prevent substantial
jeopardy to criminal proceedings.
(13) For the purposes of this Sub-title, the expression "pre-trial
stage" means the stage immediately prior to the filing of the bill of
indictment in the Criminal Court or, as the case may be, before the
Attorney General sends the record of proceedings to the Court of
Magistrates as a Court of Criminal Judicature, in terms of article
370(3), for the person accused to be tried by that court.


355AUB. (1) The confidentiality of communication between
suspects or accused persons and their lawyer in the exercise of the
right of access to a lawyer provided for under this Sub-title shall be
respected.
(2) Such communication shall include meetings,
correspondence, telephone conversations and any other form of
communication permitted by law.


355AUC. (1) Suspects or accused persons who are deprived of
liberty shall be informed, without undue delay, by the Executive
Police or by any other enforcement or judicial authority, that they
have the right to have at least one person, such as a relative or an
employer or any other person of their choice, nominated by them,
informed of their deprivation of liberty without undue delay if they
so wish, unless such other person is reasonably suspected of being
involved in the offence being investigated. A record shall be kept
of the manner in which the Executive Police or other law
enforcement or judicial authority concerned has discharged its duty
under this article.
(2) If the suspect or accused person is a child, at least one
person having parental authority, tutorship, curatorship or
guardianship in respect of the child shall be informed as soon as
possible of the deprivation of liberty and of the reasons therefor,
unless it would be contrary to the best interests of the child to do
so, in which case another appropriate adult shall be informed. For
the purposes of this article, a person below the age of eighteen
years shall be considered to be a child.
(3) In all cases, the details of the person mentioned in subarticle
(1) or of the holder of parental authority, tutorship,
curatorship or guardianship over the child mentioned in sub-article
(2) as well as the day and time at which the information was given
to such person or holder of parental or other authority as aforesaid,
shall be entered in the detention record of the suspect or in the
record of the proceedings of the person accused, as the case may
be.
(4) It shall be permissible to temporarily derogate from the
application of the rights set out in sub-articles (1) and (2) where
justified in the light of the particular circumstances of the case, on
the basis of one of the following compelling reasons:
(a) where there is an urgent need to avert serious adverse
consequences for the life, liberty or physical integrity
of a person;
(b) where there is an urgent need to prevent a situation
where criminal proceedings could be substantially
jeopardised:
Provided that in any such case, the delay shall not be later
than six hours from the time when the arrest was effected.
(5) Where a derogation from the application of the right set out
in sub-article (2) is made, the Executive Police or other law
enforcement or judicial authority concerned shall ensure that an
authority responsible for the protection or welfare of children, as
designated from time to time by the Minister responsible for Justice
by order in the Gazette, is informed without undue delay of the
deprivation of liberty of the child.


355AUD. (1) The suspect or the accused person who is deprived
of liberty shall have the right to communicate without undue delay
with at least one third person, such as a relative, friend or other
person nominated by him.
(2) A Magistrate may, following a written request from the
Executive Police or any other law enforcement authority or from
another authority other than a court exercising judicial functions,
limit or defer the exercise of the right referred to in sub-article (1)
in view of imperative requirements or proportionate operational
requirements.


355AUE. (1) The suspect or the accused person who is a nonnational
and who is deprived of liberty shall have the right to have
the consular authorities of his State of nationality informed of the
deprivation of liberty without undue delay and to communicate
with those authorities, if he so wishes. However, where the suspect
or accused person has two or more nationalities, he may choose
which consular authorities, if any, are to be informed of the
deprivation of liberty and with which he wishes to communicate.
(2) Suspects or accused persons shall also have the right to be
visited by their consular authorities, the right to converse and
correspond with them and the right to have legal representation
arranged for by their consular authorities, subject to the agreement
of those authorities and the wishes of the suspects or accused
persons concerned.
(3) The exercise of the rights laid down in this article may be
regulated by such regulations to be made by the Minister
responsible for Justice or by such procedures as may be in force
from time to time, provided that such regulations or procedures
enable full effect to be given to the purposes for which these rights
are intended.


355AUF. (1) Any temporary derogation under article
355AUA(11) or (12) or under article 355AUC(4) shall:
(a) be proportionate and not go beyond what is necessary;
(b) be strictly limited in time;
(c) not be based exclusively on the type or the seriousness
of the alleged offence; and
(d) not prejudice the overall fairness of the proceedings.
(2) Temporary derogations under article 355AUA(11) or (12)
may be authorised only by a duly reasoned decision taken on a
case-by-case basis by a Magistrate, which decision may be subject
to appeal to the Court of Criminal Appeal as constituted under
article 418 by application to be filed within two working days from
when the decision is given. The Court of Criminal Appeal shall
regulate its own procedure with regard to the determination of such
an appeal. The filing of an appeal shall not prevent the execution of
the decision of the Magistrate unless the Court of Criminal Appeal
otherwise orders. The duly reasoned decision shall be recorded in
the relative acts of the proceedings.
(3) Temporary derogations under article 355AUC(4) may be
authorised, only on a case-by-case basis, by a Magistrate.


355AUG. (1) Without prejudice to the provisions of this Sub-title
requiring the mandatory presence or assistance of a lawyer, in
relation to any waiver of a right as referred to in articles 355AUA
and 355AUH:
(a) the suspect or accused person shall be provided, orally
or in writing, with clear and sufficient information in
simple and understandable language about the content
of the right concerned and the possible consequences
of waiving it;
(b) the waiver shall be given voluntarily and
unequivocally.
(2) The waiver, which can be made in writing or orally, shall be
noted as well as the circumstances under which the waiver was
given, using any recording procedure permitted by law.
(3) The suspect or accused person may revoke a waiver
subsequently at any point during the criminal proceedings, and
shall be informed about this possibility. Such a revocation shall
have effect only from the moment it is made.


355AUH. (1) A requested person shall have the right of access to
a lawyer upon arrest in Malta pursuant to a European arrest
warrant.
(2) With regard to the content of the right of access to a lawyer
in Malta as the executing Member State, a requested person shall
have the following rights in Malta:
(a) the right of access to a lawyer in such time and in such
a manner as to allow the requested person to exercise
his rights effectively and in any event without undue
delay from deprivation of liberty;
(b) the right to meet and communicate with the lawyer
representing him;
(c) the right for his lawyer to be present and, in
accordance with procedures established by law, to
participate during a hearing of the requested person by
the competent executing judicial authority in Malta.
Where a lawyer participates during the hearing, this
shall be noted in the records of the proceedings of the
competent judicial authority in Malta.
(3) The rights provided for in articles 355AUB, 355AUC,
355AUD, 355AUE, 355AUG, and, where a temporary derogation
under article 355AUC(4) is applied, in article 355AUF, shall apply,
mutatis mutandis, to European arrest warrant proceedings in Malta
as the executing Member State.
(4) The competent authority in Malta as the executing Member
State shall, without undue delay after deprivation of liberty, inform
requested persons that they have the right to appoint a lawyer in the
issuing Member State, that is, a Member State of the European
Union which has issued a European arrest warrant with a view to
the arrest and surrender by Malta of a requested person. The role of
that lawyer in the issuing Member State shall be to assist the lawyer
in Malta, as the executing Member State, by providing that lawyer
with information and advice with a view to the effective exercise of
the rights of requested persons under Framework Decision 2002/
584/JHA.
(5) Where a requested person wishes to exercise the right to
appoint a lawyer in the issuing Member State and does not already
have such a lawyer, the competent authority in Malta as the
executing Member State shall promptly inform the competent
authority in the issuing Member State.
(6) The competent authority in Malta as the issuing Member
State in European arrest warrant proceedings shall, without undue
delay, upon a request from a competent authority in the executing
Member State, provide the requested persons with information to
facilitate their appointing a lawyer in Malta.
(7) The right of a requested person to appoint a lawyer in the
issuing Member State is without prejudice to the time-limits set out
in Framework Decision 2002/584/JHA or the obligation on the
executing judicial authority in Malta to decide, within those timelimits
and the conditions defined under that Framework Decision,
whether the person is to be surrendered.


355AUI. (1) The suspect or accused person in criminal
proceedings, and the requested persons in European arrest warrant
proceedings, shall be entitled to seek redress in the event of a
breach of their rights under this Sub-title before the courts of
criminal jurisdiction which may be seized of their case, or before a
Magistrate. Such a claim for redress shall be filed promptly and the
court seized with the claim shall have authority to grant such
redress as it deems appropriate, which redress shall be granted
without undue delay. There shall be a right of appeal from a
decision to grant or to deny such redress to the Court of Criminal
Appeal as constituted under article 418. The said appeal shall be
made by application to be filed within eight working days from the
decision and the Court of Criminal Appeal shall regulate its own
procedure with regard to the hearing of such an appeal.
(2) Without prejudice to the provisions of this Code related to
the admissibility of evidence, the rights of the defence and the
fairness of the proceedings shall be respected in all criminal
proceedings, in the assessment of statements made by suspects or
accused persons or of evidence obtained in breach of their right to a
lawyer or in cases where a derogation to this right was authorised
in accordance with article 355AUA(12).


355AUJ. (1) The Executive Police and any other law
enforcement or judicial authority shall ensure that the particular
needs of vulnerable suspects and vulnerable accused persons are
taken into account in the application of the provisions of this Subtitle.
(2) The Minister responsible for Justice may make regulations
to give better effect to the provisions of this article.
(3) For the purposes of this Sub-title, the expression
"vulnerable person" shall have the same meaning assigned to it by
article 208AC(2).


355AUK. Nothing in this Sub-title shall be construed as limiting
or derogating from any of the rights and procedural safeguards that
are ensured under the Constitution, the Charter of Fundamental
Rights of the European Union, the European Convention on Human
Rights, or other relevant provisions of international or national law
which are enforceable in the courts of Malta and which provide a
higher level of protection.

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