Provisional arrest for national proceedings

Democratic Republic of Timor-Leste

Código do Processo Penal de Timor-Leste






Article 194
Pre-trial detention

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.

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.

Article 196
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.

Article 197
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.

Article 198
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.

Article 199
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.

Article 200
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.

Article 201
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.

Article 202
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.

Article 203
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.






Article 217

1. Detention as referred to in the following articles is carried out for the purpose of :

(a) within seventy two hours, bringing the person under detention to court in an expedited proceeding or presenting that person to the judge for his or her first judicial questioning or for the imposition of a restrictive measure ; or

(b) ensuring that the person under detention is immediately brought before the judicial authority in a procedural act or, this not being feasible, at the earliest opportunity, but under no circumstances shall it be done after the seventy-two-hour deadline.

2. The judge may order the detention of any procedural participant other that a legal practitioner, magistrate or public defender as a means of ensuring the immediate appearance of that person in a procedural act from which he or she has been absent without justification.






Article 221
Arrest warrants

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.

Article 222
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.

Article 223
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.

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.