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 IX
RIGHTS OF PERSONS DETAINED

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.

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 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.

355AT. 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.

355AX. (2) Where the Magistrate decides that the request is justified he shall visit the person arrested to request his consent and before asking for his consent he shall explain to him:

(c) that he is entitled to consult a lawyer or legal procurator before deciding whether or not to give his consent.

(3) Where the person arrested requests to consult a lawyer or legal procurator under sub-article (2) the magistrate shall make a record of the fact, date and time of the request and, subject to the provisions of sub-article (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.

534AB. (1) Saving the provisions of articles 355AC, 355AS, 392 and 445, it shall be the duty of the Police or of the Court, as the case may be, to inform the suspect or the accused without undue delay of the following procedural rights:

(a) the right of access to a lawyer;
(b) any entitlement to free legal advice and the conditions for obtaining such advice;

534AGF. (1) Children who are suspects or accused persons in criminal proceedings shall have the right of access to a lawyer, in accordance with the provisions of Sub-title IX of Title I of Part I of Book Second. Nothing in this Title, in particular in this article, shall affect that right.

(2) Without prejudice to the generality of sub-article (1), the rights referred to in articles 355AUA (1), (2), (8)(b), (c) and (e) and 355AUB shall mutatis mutandis apply to children who are suspects or accused persons under this Title:

Provided that where assistance by a lawyer is not proportionate in the light of the circumstances of the case, taking into account the seriousness of the alleged criminal offence, the complexity of the case and the measures that could be taken in respect of such an offence, the right to assistance by a lawyer may be derogated from insofar as this complies with the right to a fair trial, it being understood that the child’s best interests shall always be a primary consideration:

Provided further that the derogation in the preceding proviso shall not apply and children shall always be assisted by a lawyer in the following cases:

(a) when they are brought before a competent court or judge in order to decide on detention at any stage of the proceedings within the scope of this Title; and
(b) during detention:

Provided further that deprivation of liberty shall not be imposed as a criminal sentence, unless the child has been assisted by a lawyer in such a way as to allow the child to exercise the right of defence effectively and, in any event, during the trial hearings before a court.

(3) Where the child is to be assisted by a lawyer in accordance with this Title but no lawyer is present, the Executive Police or any other law enforcement or judicial authority, as the case may be, shall postpone the questioning of the child, or other investigative or evidence-gathering acts as provided for in article 355AUA(8)(e), for a reasonable period of time in order to allow for the arrival of the lawyer or, where the child has not nominated a lawyer, to arrange a lawyer for the child.

(4) In exceptional circumstances, and only at the pre-trial stage, a temporary derogation from the application of the rights provided for in article 355AUA(2), to the extent justified in the light of the particular circumstances of the case, may be applied 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 in relation to a serious criminal offence:

Provided that for the purposes of this sub-article the expression "pre-trial stage" shall have the same meaning as is assigned to it in article 355AUA(13).

(5) In the application of sub-article (4) the child's best interests shall be taken into account, and a decision to proceed with questioning in the absence of a lawyer under sub-article (4) shall be taken on a strictly case-by-case basis either by the Police or by any other law enforcement or judicial authority as the case may be:

Provided that such decision may be appealed by the holder of parental responsibility or another appropriate adult as referred to in article 534AGE before the Court of Appeal (Inferior Jurisdiction) within twelve (12) days from such a decision.

Schedule E

[Article 534AB]

PART I
Letter of Rights

You have the following rights when you are arrested or detained:

A. ASSISTANCE OF A LAWYER/ENTITLEMENT TO LEGAL AID

You have the right to access a lawyer whilst in detention. Such right begins from the moment of your detention and before you are questioned.

You have the right to be provided with a list of advocates and a list of legal procurators from which you can choose one to assist you or to elect to be assisted by the Advocate for Legal Aid. In the latter case, legal assistance is free of charge. The police may not indicate to you the name of the lawyer you may engage during your arrest or detention.

Not less than one hour before the commencement of questioning, you and your lawyer have the right to be informed of the alleged offence about which you will be questioned. Such information shall be provided to you prior to the commencement of questioning, which time shall not be less than one hour before questioning starts.

Upon detention, you have the right to meet in private and communicate with the lawyer representing you, including prior to questioning by the police.

You have the right for your lawyer to be present and participate effectively when questioned.

All questioning, all answers given thereto and all the proceedings related to the questioning of the suspect or accused person are, where possible in the opinion of the interviewer to be recorded by audiovisual means; you have the right to be given a copy of the recording following the conclusion of the questioning.

You have the right for your lawyer to attend the following investigative or evidence-gathering acts:

(i) identity parades;
(ii) confrontations;
(iii) reconstructions of the scene of an offence.

The confidentiality of your communication with your lawyer in the exercise of your right to access a lawyer shall be respected.

Upon arrest you are to be informed of your right to have at least one person, such as a relative, an employer or any other person of your choice informed of your deprivation of liberty.

If you are a child, that is, a person below the age of eighteen years, a person entitled to exercise parental authority, tutorship, curatorship or guardianship over you is informed of your arrest or detention and the reasons for such arrest or detention.

Schedule E

[Article 534AB]

PART II
Letter of Rights for persons arrested on the basis of a European Arrest Warrant

You have been arrested on the basis of an European Arrest Warrant. You have the following rights:

B. ASSISTANCE OF A LAWYER

You have the right to access a lawyer whilst in detention. Such right begins from the moment of your detention and before you are questioned.

You have the right to be provided with a list of advocates and a list of legal procurators from which you can choose one to assist you or to elect to be assisted by the Advocate for Legal Aid. In the latter case, legal assistance is free of charge. The police may not indicate to you the name of the lawyer you may engage during your arrest or detention.

Not less than one hour before the commencement of questioning, you and your lawyer have the right to be informed of the alleged offence about which you will be questioned. Such information shall be provided to you prior to the commencement of questioning, which time shall not be less than one hour before questioning starts.

Upon detention, you have the right to meet in private and communicate with the lawyer representing you, including prior to questioning by the police.

You have the right for your lawyer to be present and participate effectively when questioned.

All questioning, all answers given thereto and all the proceedings related to the questioning of the suspect or accused person are, where possible in the opinion of the interviewer to be recorded by audiovisual means; you have the right to be given a copy of the recording following the conclusion of the questioning.

You have the right for your lawyer to attend the following investigative or evidence-gathering acts:

(i) identity parades;
(ii) confrontations;
(iii) reconstructions of the scene of a crime.

The confidentiality of your communication with your lawyer in the exercise of your right to access a lawyer shall be respected.

Upon arrest you are to be informed of your right to have at least one person, such as a relative, an employer or any other person of your choice informed of your deprivation of liberty.

If you are a child, that is, a person below the age of eighteen years, a person exercising parental authority, tutorship, curatorship or guardianship over you is informed of your arrest or detention and the reasons for such arrest or detention.