34. (1) No person shall be deprived of his personal liberty save as may be authorised by law in the following cases, that is to say -
(a) in consequence of his unfitness to plead to a criminal charge;
(b) in execution of the sentence or order of a court, whether in Malta or elsewhere, in respect of a criminal offence of which he has been convicted;
(c) in execution of the order of a court punishing him for contempt of that court or of another court or tribunal or in execution of the order of the House of Representatives punishing him for contempt of itself

Fundamental rights and freedoms of the individual.
Amended by: X.2014.2.

















Protection of right to life.




















Protection from arbitrary arrest or detention.

or of its members or for breach of privilege;
(d) in execution of the order of a court made to secure the fulfilment of any obligation imposed on him by law;
(e) for the purpose of bringing him before a court in execution of the order of a court or before the House of Representatives in execution of the order of that House;
(f) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence;
(g) in the case of a person who has not attained the age of eighteen years, for the purpose of his education or welfare;
(h) for the purpose of preventing the spread of an infectious or contagious disease;
(i) in the case of a person who is, or is reasonably suspected to be, of unsound mind, addicted to drugs or alcohol, or a vagrant, for the purpose of his care or treatment or the protection of the community; or
(j) for the purpose of preventing the unlawful entry of that person into Malta, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Malta or the taking of proceedings relating thereto or for the purpose of restraining that person while he is being conveyed through Malta in the course of his extradition or removal as a convicted prisoner from one country to another.
(2) Any person who is arrested or detained shall be 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.
(3) Any person who is arrested or detained –
(a) for the purpose of bringing him before a court in execution of the order of a court; or
(b) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence,
and who is not released, shall be brought not later than forty-eight hours before a court; and if any person arrested or detained in such a case as is mentioned in paragraph (b) of this sub-article is not tried within a reasonable time, then, without prejudice to any further proceedings which may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.


(4) Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation therefor from that person.
(5) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this article to the extent that the law in question authorises the taking during such a period of public emergency as is referred to in paragraph ( a ) or ( c ) of sub-article (2) of article 47 of this Constitution of measures that are reasonably justifiable for the purpose of dealing with the situation that exists during that period of public emergency.
(6) If any person who is lawfully detained by virtue only of such a law as is referred to in the last foregoing sub-article so requests at any time during the period of that detention not earlier than six months after he last made such a request during that period, his case shall be reviewed by an independent and impartial tribunal established by law and composed of a person or persons each of whom holds or has held judicial office or is qualified to be appointed to such office in Malta.
(7) On any review by a tribunal in pursuance of the last foregoing sub-article of the case of any detained person, the tribunal may make recommendations concerning the necessity or expediency of continuing his detention to the authority by whom it was ordered, but, unless it is otherwise provided by law, that authority shall not be obliged to act in accordance with any such recommendations.

36. (1) No person shall be subjected to inhuman or degrading punishment or treatment.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this article to the extent that the law in question authorises the infliction of any description of punishment which was lawful in Malta immediately before the appointed day.
(3) (a) No law shall provide for the imposition of collective punishments.
(b) Nothing in this sub-article shall preclude the imposition of collective punishments upon the members of a disciplined force in accordance with the law regulating the discipline of that force.

39. (1) Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.
(2) Any court or other adjudicating authority prescribed by law for the determination of the existence or the extent of civil rights or obligations shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time.
(3) Except with the agreement of all the parties thereto, all proceedings of every court and proceedings relating to the determination of the existence or the extent of a person’s civil rights or obligations before any other adjudicating authority, including the announcement of the decision of the court or other authority, shall be held in public.
(4) Nothing in sub-article (3) of this article shall prevent any court or any authority such as is mentioned in that sub-article from excluding from the proceedings persons other than the parties thereto and their legal representatives -
(a) in proceedings before a court of voluntary jurisdiction and other proceedings which, in the practice of the Courts in Malta are, or are of the same nature as those which are, disposed of in chambers;
(b) in proceedings under any law relating to income tax; or

(c) to such extent as the court or other authority -
(i) may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice; or
(ii) may be empowered or required by law to do so in the interests of defence, public safety, public order, public morality or decency, the welfare of persons under the age of eighteen years or the protection of the private lives of persons concerned in the proceedings.
(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty:
Provided that nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this sub-article to the extent that the law in question imposes upon any person charged as aforesaid the burden of proving particular facts.
(6) Every person who is charged with a criminal offence -
(a) shall be informed in writing, in a language which he understands and in detail, of the nature of the offence charged;
(b) shall be given adequate time and facilities for the preparation of his defence;
(c) shall be permitted to defend himself in person or by a legal representative and a person who cannot afford to pay for such legal representation as is reasonably required by the circumstances of his case shall be entitled to have such representation at the public expense;
(d) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before any court and to obtain the attendance of witnesses subject to the payment of their reasonable expenses, and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution; and
(e) shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the charge,
and except with his own consent the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence.
(7) When a person is tried for any criminal offence, the accused person or any person authorised by him in that behalf shall, if he so requires and subject to payment of such reasonable fee as may be prescribed by law, be given within a reasonable time after judgment a copy for the use of the accused person of any record of the




































Protection of freedom of conscience and worship.
Amended by: LVIII.1974.12.

proceedings made by or on behalf of the court.
(8) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence which is severer in degree or description than the maximum penalty which might have been imposed for that offence at the time when it was committed.
(9) No person who shows that he has been tried by any competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence save upon the order of a superior court made in the course of appeal or review proceedings relating to the conviction or acquittal; and no person shall be tried for a criminal offence if he shows that he has been pardoned for that offence:
Provided that nothing in any law shall be held to be inconsistent with or in contravention of this sub-article by reason only that it authorises any court to try a member of a disciplined force for a criminal offence notwithstanding any trial and conviction or acquittal of that member under the disciplinary law of that force, so however that any court so trying such a member and convicting him shall in sentencing him to any punishment take into account any punishment awarded him under that disciplinary law.
(10) No person who is tried for a criminal offence shall be compelled to give evidence at his trial.
(11) In this article "legal representative" means a person entitled to practise in Malta as an advocate or, except in relation to proceedings before a court where a legal procurator has no right of audience, a legal procurator.

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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 VII Warrants

355AJ. (1) Where any person is arrested, whether with or without a warrant, the arresting police officer or his superior shall, as soon as practicable and unless the person arrested has been released within six hours from arrest, inform a Magistrate, giving all details as to time and place where the person is being held.

(2) The Magistrate may order that the person arrested be transferred to another place with immediate effect.

(3) Any person arrested in pursuance of any provision of this Code and who has not been brought before a court within forty-eight hours of his arrest shall be released.

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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.

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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 IX
RIGHTS OF PERSONS DETAINED

355AS. (1) It shall be the duty of the Police to inform without undue delay the person arrested or detained of his right to request that a relative or friend be informed of the fact of his arrest and of his whereabouts unless such relative or friend is reasonably suspected of being involved in the offence being investigated. If the person arrested avails himself of such right the relative or friend shall without undue delay be informed accordingly and a record as provided in subarticles (2) and (3) shall be kept of the way the Police discharged their duty under this subarticle.

(2) In all cases the following information shall be entered in the detention record of the person detained:
(a) the day and time in which the detained person was informed of his right under this article;
(b) whether the detained person chose to avail himself of that right or not;
(c) if the detained person chose to avail himself of that right, the details of the relative or friend informed of the detained person’s arrest and whereabouts together with the day and time in which the information was given; if such relative or friend was not so informed the reasons for this.

(3) The arrested or detained person shall be requested to sign the record referred to in subarticle (2) and should he refuse to do so an entry shall be entered in the record to this effect.

(4) Notwithstanding the provisions of subarticle (1), the investigating officer may by application to a Magistrate request that he be authorised to delay informing a relative or friend of the detained person if there are reasonable grounds for suspecting that the giving of such information may be prejudicial to the investigation or to the recovery of things, or that it may alert other persons who are connected with the offence and are still not in Police custody. Such a delay shall not be later than six hours from the time when the arrest was effected.

(5) An arrested person shall, at his request, be allowed to consult a medical adviser of his choice provided that such medical adviser is readily available.

(6) The application referred to in subarticle (4) may be communicated to the Magistrate by facsimile:
Provided that, as soon as practicable, the original application shall be delivered for record purposes.


355AT. (1) Subject to the provisions of subarticle (3), a person arrested and held in police custody at a police station or other authorised place of detention shall, if he so requests, be allowed as soon as practicable to consult privately with a lawyer or legal procurator, in person or by telephone, for a period not exceeding one hour. As early as practical before being questioned the person in custody shall be informed by the Police of his rights under this subarticle.

(2) A request made under subarticle (1) shall be recorded in the custody record together with the time that 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.

(3) Subject to the provisions of subarticle (7), compliance with a request under subarticle (1) may be delayed if the person making the request is in police detention for a crime and if an officer not below the rank of superintendent authorises such delay.

(4) An authorisation under subarticle (3) may be given orally or in writing but if it is given orally it shall be confirmed in writing as soon as it is practicable.

(5) An officer may only authorise delay where he has reasonable grounds for believing that the exercise of the right conferred by subarticle (1) at the time when the person detained desires to exercise it -
(a) will lead to interference with or harm to evidence connected with the offence being investigated or interference with or physical injury to other persons; or;
(b) will lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it; or
(c) will hinder the recovery of any property obtained as a result of such an offence; or
(d) in the case of a person detained for an offence of drug trafficking, bribery, or money laundering, will hinder the recovery of the value of that person’s proceeds from the offence.

(6) Where delay has been authorised as provided in subarticle (5) the Police may immediately proceed to question the detained person.

(7) The delay mentioned in subarticle (3) shall in no case exceed thirty-six hours from the time of the arrest.

(8) Any police officer who tries 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.

(9) Where the person detained chooses not to seek legal assistance the investigating officer shall record this fact in writing in the presence of two witnesses and thereupon questioning may proceed immediately.


355AU. (1) Where in any proceedings against a person for an offence, evidence is given that the accused -
(a) at any time before he was charged with the offence, on being questioned by the police 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 accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subarticle (2) shall apply if it is shown that the accused had received legal advice before being questioned, charged or informed as aforesaid.

(2) Where this subarticle applies -
(a) a Court of Magistrates as court of criminal inquiry in making a decision under article 401(2);
(b) the court or jury, in determining whether the person charged or accused is guilty of the offence charged,
may draw such inferences from the failure as appear proper, which inferences may not by themselves be considered as evidence of guilt but may be considered as amounting to corroboration of any evidence of guilt of the person charged or accused.

(3) In criminal proceedings against any person for an offence the prosecution shall not, without the permission of the court for reasons which it considers just, comment on the fact that that person did not request the assistance of a lawyer or a legal procurator in the course of police investigations before those proceedings.

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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 X
TAKING OF SAMPLES, FINGERPRINTING AND OTHER INVESTIGATIVE PROCEDURES

355AX. (3) Where the person arrested requests to consult a lawyer or legal procurator under subarticle (2) the magistrate shall make a record of the fact, date and time of the request and, subject to the provisions of subarticle (4) shall allow the person arrested to consult with a lawyer or legal procurator for such time as the magistrate may deem appropriate in the circumstances of the case.

(4) The magistrate may, on a justified objection by the Police, delay any communication with an advocate or legal procurator if the interests of justice so require or when any of the events mentioned in article 355AT(5) is likely to occur if such communication is allowed immediately:
Provided that where the person arrested has requested to consult a lawyer or legal procurator his consent can only be requested after such consultation has taken place.

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PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED

Title II Of the Court of Magistrates

Sub-title I Of the Court of Magistrates as Court of Criminal Judicature

374. (a) the complainant and the defendant shall appear personally on the day appointed for the hearing of the complaint. They may, however, be assisted by advocates or legal procurators;

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Title II Of the Court of Magistrates

Sub-title I Of the Court of Magistrates as Court of Criminal Judicature

375. (a) the accused shall appear personally. He may, however, be assisted by advocates or legal procurators;

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Title II Of the Court of Magistrates

Sub-title I Of the Court of Magistrates as Court of Criminal Judicature

375. (e) the accused may cross-examine the said officer

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PART I
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Title II Of the Court of Magistrates

Sub-title II Of the Court of Magistrates as Court of Criminal

392. (1) The examination of the accused referred to in article 390(1), shall, without threat or promise, and without oath, be made in the following manner:
(a) the court shall ask him his name and surname, his age, his place of birth and abode, his trade, profession or calling, the name and surname of his father and whether his father is alive or dead;
(b) the court shall ask the accused if and what he wishes to reply to the charge.

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Title II Of the Court of Magistrates

Sub-title II Of the Court of Magistrates as Court of Criminal

392. (2) Before asking any of the above questions, the court shall explain to the accused the nature of the charge preferred against him and shall inform him that he is not obliged to answer any question nor to incriminate himself; that he may, if he so desires, be assisted by advocates or legal procurators and that whatever he says may be received in evidence against him.

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PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED

Title II Of the Court of Magistrates

Sub-title II Of the Court of Magistrates as Court of Criminal

395. The depositions of the witnesses and the examination of the accused shall be signed by the magistrate.

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PART I
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Title II Of the Court of Magistrates

Sub-title II Of the Court of Magistrates as Court of Criminal

399. (2) The accused may, within the term of four working days from any such order, appoint some person to represent him at the examination or process. Such term may, upon good cause being shown, be extended.

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PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED

Title II Of the Court of Magistrates

Sub-title II Of the Court of Magistrates as Court of Criminal

400. The accused may, in the course of the inquiry, be assisted by advocates or legal procurators.

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Title II Of the Court of Magistrates

Sub-title II Of the Court of Magistrates as Court of Criminal

401. (1) The inquiry shall be concluded within the term of one month which may, upon good cause being shown, be extended by the President of Malta for further periods each of one month, each such extension being made upon a demand in writing by the court:
Provided that the said term shall not in the aggregate be so extended to more than three months:
Provided further that unless bail has been granted, the accused shall be brought before the court at least once every fifteen days in order that the court may decide whether he should again be remanded in custody.

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Title II Of the Court of Magistrates

Sub-title II Of the Court of Magistrates as Court of Criminal

402. (7) In the cases referred to in subarticles (5) and (6), the inquiry may be continued in the absence of the accused, and if he is not assisted by an advocate or legal procurator, the provisions of article 519 shall apply.

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OF THE AUTHORITIES TO WHICH THE ADMINISTRATION OF CRIMINAL JUSTICE IS ENTRUSTED

Title II Of the Court of Magistrates

Sub-title II Of the Court of Magistrates as Court of Criminal

405. (3) The witnesses shall be examined or re-examined in the presence of the accused in order that he may have the opportunity of cross-examining them, and, for such purpose, the court shall order the accused, if in custody, to be brought up, and, if not in custody, to be summoned to appear before it.

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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

410. (1) In any proceedings instituted by the Executive Police on the complaint of the injured party, it shall be lawful for the complainant to be present at the proceedings, to engage an advocate or a legal procurator to assist him, to examine or cross-examine witnesses and to produce, in support of the charge, such other evidence as the court may consider admissible.

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Title IV Of the Criminal Court

445. If the accused appears without counsel, the court shall inform him that he has the right to be assisted by counsel.

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Title IV Of the Criminal Court

453. (1) If the accused, in answer to the question prescribed under article 450, states that he is guilty of the offence, the court shall in the most solemn manner warn him of the legal consequences of such statement, and shall allow him a short time to retract it; but if the accused persists in his statement, such statement shall be recorded and the court shall proceed to pass on the accused such sentence as would according to law be passed on an accused convicted of the offence.

Duties of the court. (2) Nevertheless, if there is good reason to doubt whether the
offence has really taken place at all, or whether the accused is guilty of the offence, the court shall, notwithstanding the confession of the accused, order the trial of the cause to be proceeded with as if the accused had not pleaded guilty.

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Title IV Of the Criminal Court

458. (1) When the case for the prosecution is concluded, the accused shall be asked what he has to state in his defence. He shall have the right to make his defence, either personally or by an advocate, and to call and examine his witnesses in the manner provided in the last preceding article, and to produce any other evidence he may have to offer.

(2) If the accused is assisted by more than one advocate, such advocates may divide the duties between them in such a manner that one will make the defence and the other will make the rejoinder, when this is allowed, or, that one will make the defence and rejoinder and the other will examine the witnesses; but neither of them may address the court or the jury after the defence or rejoinder has been made by the other; and the provisions of this subarticle shall apply to every other stage of the proceedings in which the accused is assisted by more than one advocate.

(3) It shall also be lawful for the accused either to make his own defence and leave to his advocate the rejoinder, when this is allowed, or to make the rejoinder notwithstanding that his defence was made by his advocate.

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Title IV Of the Criminal Court

459. The order to be followed in the examination of witnesses shall be as hereunder:
The party calling the witness proceeds to examine him; then the opposite party may, if he so desires, cross-examine him; any juror may then put any question which he may deem necessary; and the court, besides the questions which it may deem proper to put in the course of the examination or cross-examination, may finally put any other question which it shall deem necessary.

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Title IV Of the Criminal Court

459A. (1) The accused who takes the stand to testify shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than the one with which he is accused, or is of bad character, unless -
(a) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of an offence with which he is accused; or
(b) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution, or the deceased victim of the alleged crime; or
(c) he has given evidence which involves in the commission of the offence with which he is being accused, any other person accused in the same proceedings.

(2) In any of the circumstances mentioned in paragraphs (a) to (c) above any record showing any previous convictions of the person charged or accused may be produced in evidence.

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PART II OF MATTERS RELATING TO CERTAIN MODES OF PROCEDURE AND TO CERTAIN TRIALS

Title III Of Counsel for the Accused

570. (1) The Advocate for Legal Aid shall gratuitously undertake the defence of any accused who has briefed no other advocate or who has been admitted to sue or defend with the benefit of legal aid in any court mentioned in this Code.

(2) The request for the assistance of the Advocate for Legal Aid or for the benefit of legal aid shall be made either by application or orally to the Advocate for Legal Aid.

(3) Article 911(4), (5) and (6) of the Code of Organization and Civil Procedure shall mutatis mutandis apply to the Advocate for Legal Aid.

(4) Where any court is informed by the accused that he has been unable to brief any advocate or that he wishes to avail himself of the benefit of legal aid that court shall cause the declaration made by the accused to be registered in the records of the case and shall order that such declaration, together with the details of the accused, be served on the Advocate for Legal Aid who within two working days shall file a reply indicating if the request of the accused has been accepted and if so the name of the Advocate for Legal Aid who will be representing the accused:
Provided that in the case of summary proceedings before the Court of Magistrates acting as a Court of Criminal Judicature the Court shall appoint the advocate whose turn it is from the panel of advocates mentioned in article 91 of the Code of Organization and Civil Procedure to assist the accused in those proceedings as well as in any appeal from any decision given in those proceedings provided that before filing any such appeal he shall consult the Advocate for Legal Aid who may, at any time, decide to take over the appeal.

(5) The Advocate for Legal Aid may only decline his aid on any ground which, in the opinion of the court, prima face justifies the refusal of his aid. In such event the Court shall order that the accused be represented by another advocate, who is not himself excusable, to be appointed by the Court on the recommendation of the Advocate for Legal Aid from the panel of advocates mentioned in article 91 of the Code of Organization and Civil Procedure provided that the court may in exceptional circumstances to be stated in its decree order any other advocate to take up the defence of the accused.

(6) The advocate appointed by the court in the exceptional circumstances referred to in subarticle (5) shall render his services gratuitously.

PART IV
PROVISIONS APPLICABLE TO RETURN OF OFFENDERS TO ALL
COUNTRIES

17. (1) Any person remanded or committed for custody under
article 15 shall be committed to prison and shall be treated as a person awaiting trial.
(2) Such person shall be deemed to be in legal custody from the moment that he is so remanded or committed until he is beyond the jurisdiction of the Courts of Criminal Justice of Malta.