Provisional arrest

Republic of Malta

Malta - Criminal Code 1854 (2014) EN

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 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 subarticle (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 subarticles (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.

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.

(2) Before ordering the release from custody of a person under subarticle (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 subarticle (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 subarticle (3) shall be guilty of a contravention.

(6) A police officer may arrest without a warrant any person who, having been conditionally released under subarticle (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 subarticle (6) shall be treated as arrested for the offence under subarticle (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 subarticle (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 subarticle (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.

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

412A. (1) When the person charged or accused brought before the Court of Magistrates, whether as a court of criminal judicature or as a court of criminal inquiry, is not in custody the Police may thereupon or at any stage of the proceedings thereafter request the court to impose conditions upon the person charged or accused in order to ensure the appearance of that person at the proceedings on the appointed time and place or to otherwise ensure that that person will not in any way unlawfully interfere in the correct administration of justice in those proceedings.

(2) The court may require the giving of sufficient security by the person charged or accused by the mere recognizance of the same person charged or accused in order to ensure that he abides by the conditions imposed upon him by the court and the provisions of articles 576 and 584, shall apply to the security given under this subarticle.

(3) The sum given by way of security shall be forfeited to the Government of Malta and a warrant of arrest shall be issued against the person charged or accused where that person fails to observe any of the conditions imposed by the court in pursuance of the provisions of this article and in any of the other circumstances mentioned in article 579 provided that the provisions of this subarticle shall not apply where the court considers that the infringement of the condition imposed by the court is not of serious consequence.

Rome Statute

Article 92 Provisional arrest

1. In urgent cases, the Court may request the provisional arrest of the person sought, pending presentation of the request for surrender and the documents supporting the request as specified in article 91.

2. The request for provisional arrest shall be made by any medium capable of delivering a written record and shall contain:

(a) Information describing the person sought, sufficient to identify the person, and information as to that person's probable location;

(b) A concise statement of the crimes for which the person's arrest is sought and of the facts which are alleged to constitute those crimes, including, where possible, the date and location of the crime;

(c) A statement of the existence of a warrant of arrest or a judgement of conviction against the person sought; and

(d) A statement that a request for surrender of the person sought will follow.

3. A person who is provisionally arrested may be released from custody if the requested State has not received the request for surrender and the documents supporting the request as specified in article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the person may consent to surrender before the expiration of this period if permitted by the law of the requested State. In such a case, the requested State shall proceed to surrender the person to the Court as soon as possible.

4. The fact that the person sought has been released from custody pursuant to paragraph 3 shall not prejudice the subsequent arrest and surrender of that person if the request for surrender and the documents supporting the request are delivered at a later date.