CRIMINAL PROCEDURE CODE
ON THE GENERAL PART
ON RESTRICTIVE AND PROPERTY-GUARANTEE MEASURES
APPLICABLE MEASURES AND RESPECTIVE RULES
1. In addition to meeting one of the requirements provided in article 183, the imposition of pre-trial detention depends cumulatively on the existence of the following prerequisites :
(a) strong indications that a crime punishable with imprisonment exceeding three years has been committed ;
(b) inadequacy or insufficiency of any other restrictive measure provided in the law.
2. Pre-trial detention may also be imposed on a person who unlawfully enters or remains on the national territory or against whom an extradition or expulsion process has been initiated, under the terms to be regulated by a specific law.
3. The imposition of pre-trial detention must, where feasible, be preceded or followed by hearing the defendant, allowing him or her to challenge the existence of the prerequisites of the said measure.
4. A person suffering from a mental disorder shall, where the requirements for the imposition of pre-trial detention are met and as long as such a disorder persists, be preventively admitted to a psychiatric hospital or other appropriate establishment, for the period of time deemed necessary for the imposition of such a provisional measure.
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.
Review of prerequisites
1. The judge shall review the prerequisites that form the basis for maintaining the defendant under pre-trial detention every six months of the duration thereof, and the defendant and the public prosecutor may issue an opinion ten days before that period of time elapses.
2. During the investigation, the public prosecutor submits the records to the competent Judge ten days before the six-month period referred to in sub-article 196.1 elapses.
Overriding pre-trial detention
1. If requested or at his or her own discretion, the judge may override pre-trial detention and determine that the defendant be released where it is established that pre-trial detention has been imposed in cases and conditions other than those provided in the law or where the circumstances that led to pre-trial detention have ceased to exist.
Suspending pre-trial detention
1.Pre-trial detention may be suspended on grounds of serious disease, labour pains or pregnancy for such a period as deemed necessary by the judge, depending on the probable duration of these circumstances.
2.During suspension, pre-trial detention may be substituted for another restrictive measure that is generally consistent with the situation in question.
Substituting pre-trial detention
1.In the situation provided in the sub-article 194.4 and also in the event that the defendant suffers from a serious mental disorder that does not manifest itself continually, the judge may, on an exceptional basis, order that the defendant be admitted to hospital, with or without police surveillance, in substitution for pre-trial detention.
2.Where there is a mitigation of the provisional requirements that have resulted in the imposition of pre-trial detention, the judge may substitute it for a lesser measure, after consultation with the public prosecutor and the defendant, on a discretionary basis or at request.
Deducting pre-trial detention
1. The period of time in pre-trial detention spent by a defendant in a case where he or she is convicted is deducted from the term of imprisonment imposed.
2. Where a penalty of fine is imposed, pre-trial detention is deducted at the rate of one day of fine for, at least, one day of imprisonment.
Crediting pre-trial detention
For procedural purposes, the period of time in detention spent by a defendant is credited towards the duration of pre-trial detention.
Substituting restrictive measures
1.Sub-article 198.2 is correspondingly applicable to any other restrictive measure.
2.In case of failure to fulfil the obligations imposed by means of a restrictive measure, other measure(s) may be imposed, or the original measure substituted, depending on the circumstances.
Lapse of restrictive measures
1. Restrictive measures lapse immediately after:
(a) case is dismissed for lack of indictment ;
(b) an order rejecting an indictment rendered final ;
(c) a sentence of acquittql is handed down, even tough an appeal has been lodged against it ;
(d) a convectiong decision is rendered final ;
2. Pre-trial detention as a measure shall also lapse immediately after a convicting sentence is handed down, even though an appeal has been lodged against it, where the imposed penalty does not exceed the period of time the defendant has spent in pre-trial detention.
3. The lapse of pre-trial detention shall result in the immediate release of the defendant.
4. If, in the case of paragraph 203.1(c), the defendant is convicted in connection with the same case, the latter may, as long as the convicting sentence is not rendered final, be subjected to any of the legally admissible restrictive measures.
5. Where the restrictive measure is bail and the defendant is convicted to imprisonment, the restrictive measure shall lapse only after the penalty begins to be executed.
CRIMINAL PROCEDURE CODE
ON ORDINARY PROCEDURES
1. Subject to sub-article 220.2, an arrest other than in flagrante delicto may be carried out only through a warrant the duplicate of which shall be handed over to the person to be arrested.
2. An arrest warrant must contain :
(a) the identification of the person to be arrested and the capacity in which he or she is intervening in the case;
(b) brief indication of the grounds for the arrest and its purpose;
(c) identification and number of the case file regarding the arrest.
3. The warrant is written in triplicate, one of the duplicates being attached to the records once the arrest has been certified, the other kept in the files of the arresting entity, and the original handed over to the person to be arrested, in the act of his or her capture.
4. An arrest that is not in compliance with this and the preceding article is unlawful.
Notifying an arrest
An arrest must be immediately notified to :
(a) the judge who has ordered the arrest if the arrested person is not immediately presented to the former ;
(b) the public prosecutor in any other cases.
Releasing an a person under arrest
1. Any entity who has ordered an arrest or to whom the person under arrest has been delivered shall release the latter immediately :
(a) as soon as it becomes evident that the arrest was carried out in a situation of mistaken identity ;
(b) if it has been carried out outside the cases and the conditions provided in the law, namely in the cases where the 72-hour period to present the detainee has been exceeded ;
(c) as soon as such order becomes unnecessary.
2. Release is preceded by a writ if the arrest has been ordered by the public prosecutor or the judge and, in the case of another entity, through the subsequent preparation of a report to be attached to the case file.
3. Any release carried out on the initiative of any police entity, before the person under arrest has been presented to the judge, must be notified to the public prosecutor, under the penalty of disciplinary liability.
(a) The Court shall have the authority to make requests to States Parties for cooperation. The requests shall be transmitted through the diplomatic channel or any other appropriate channel as may be designated by each State Party upon ratification, acceptance, approval or accession. Subsequent changes to the designation shall be made by each State Party in accordance with the Rules of Procedure and Evidence.
(b) When appropriate, without prejudice to the provisions of subparagraph (a), requests may also be transmitted through the International Criminal Police Organization or any appropriate regional organization.
2. Requests for cooperation and any documents supporting the request shall either be in or be accompanied by a translation into an official language of the requested State or one of the working languages of the Court, in accordance with the choice made by that State upon ratification, acceptance, approval or accession. Subsequent changes to this choice shall be made in accordance with the Rules of Procedure and Evidence.
3. The requested State shall keep confidential a request for cooperation and any documents supporting the request, except to the extent that the disclosure is necessary for execution of the request.
4. In relation to any request for assistance presented under this Part, the Court may take such measures, including measures related to the protection of information, as may be necessary to ensure the safety or physical or psychological well-being of any victims, potential witnesses and their families. The Court may request that any information that is made available under this Part shall be provided and handled in a manner that protects the safety and physical or psychological well-being of any victims, potential witnesses and their families.
(a) The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.
(b) Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council.
6. The Court may ask any intergovernmental organization to provide information or documents. The Court may also ask for other forms of cooperation and assistance which may be agreed upon with such an organization and which are in accordance with its competence or mandate.
7. Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.
States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part.
1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.
2. Where the person sought for surrender brings a challenge before a national court on the basis of the principle of ne bis in idem as provided in article 20, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with the execution of the request. If an admissibility ruling is pending, the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility.
(a) A State Party shall authorize, in accordance with its national procedural law, transportation through its territory of a person being surrendered to the Court by another State, except where transit through that State would impede or delay the surrender.
(b) A request by the Court for transit shall be transmitted in accordance with article 87. The request for transit shall contain:
(i) A description of the person being transported;
(ii) A brief statement of the facts of the case and their legal characterization; and
(iii) The warrant for arrest and surrender;
(c) A person being transported shall be detained in custody during the period of transit;
(d) No authorization is required if the person is transported by air and no landing is scheduled on the territory of the transit State;
(e) If an unscheduled landing occurs on the territory of the transit State, that State may require a request for transit from the Court as provided for in subparagraph (b). The transit State shall detain the person being transported until the request for transit is received and the transit is effected, provided that detention for purposes of this subparagraph may not be extended beyond 96 hours from the unscheduled landing unless the request is received within that time.
4. If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.
1. A State Party which receives a request from the Court for the surrender of a person under article 89 shall, if it also receives a request from any other State for the extradition of the same person for the same conduct which forms the basis of the crime for which the Court seeks the person's surrender, notify the Court and the requesting State of that fact.
2. Where the requesting State is a State Party, the requested State shall give priority to the request from the Court if:
(a) The Court has, pursuant to article 18 or 19, made a determination that the case in respect of which surrender is sought is admissible and that determination takes into account the investigation or prosecution conducted by the requesting State in respect of its request for extradition; or
(b) The Court makes the determination described in subparagraph (a) pursuant to the requested State's notification under paragraph 1.
3. Where a determination under paragraph 2 (a) has not been made, the requested State may, at its discretion, pending the determination of the Court under paragraph 2 (b), proceed to deal with the request for extradition from the requesting State but shall not extradite the person until the Court has determined that the case is inadmissible. The Court's determination shall be made on an expedited basis.
4. If the requesting State is a State not Party to this Statute the requested State, if it is not under an international obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the Court, if the Court has determined that the case is admissible.
5. Where a case under paragraph 4 has not been determined to be admissible by the Court, the requested State may, at its discretion, proceed to deal with the request for extradition from the requesting State.
6. In cases where paragraph 4 applies except that the requested State is under an existing international obligation to extradite the person to the requesting State not Party to this Statute, the requested State shall determine whether to surrender the person to the Court or extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to:
(a) The respective dates of the requests;
(b) The interests of the requesting State including, where relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and
(c) The possibility of subsequent surrender between the Court and the requesting State.
7. Where a State Party which receives a request from the Court for the surrender of a person also receives a request from any State for the extradition of the same person for conduct other than that which constitutes the crime for which the Court seeks the person's surrender:
(a) The requested State shall, if it is not under an existing international obligation to extradite the person to the requesting State, give priority to the request from the Court;
(b) The requested State shall, if it is under an existing international obligation to extradite the person to the requesting State, determine whether to surrender the person to the Court or to extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to those set out in paragraph 6, but shall give special consideration to the relative nature and gravity of the conduct in question.
Where pursuant to a notification under this article, the Court has determined a case to be inadmissible, and subsequently extradition to the requesting State is refused, the requested State shall notify the Court of this decision.
1. A request for arrest and surrender shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a).
2. In the case of a request for the arrest and surrender of a person for whom a warrant of arrest has been issued by the Pre-Trial Chamber under article 58, the request shall contain or be supported by:
(a) Information describing the person sought, sufficient to identify the person, and information as to that person's probable location;
(b) A copy of the warrant of arrest; and
(c) Such documents, statements or information as may be necessary to meet the requirements for the surrender process in the requested State, except that those requirements should not be more burdensome than those applicable to requests for extradition pursuant to treaties or arrangements between the requested State and other States and should, if possible, be less burdensome, taking into account the distinct nature of the Court.
3. In the case of a request for the arrest and surrender of a person already convicted, the request shall contain or be supported by:
(a) A copy of any warrant of arrest for that person;
(b) A copy of the judgement of conviction;
(c) Information to demonstrate that the person sought is the one referred to in the judgement of conviction; and
(d) If the person sought has been sentenced, a copy of the sentence imposed and, in the case of a sentence for imprisonment, a statement of any time already served and the time remaining to be served.
4. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (c). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.
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.