Preservation of evidence - national proceedings

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 III POWERS OF ENTRY, SEARCH AND SEIZURE UNDER WARRANT

355E. (1) Saving the cases where the law provides otherwise, no police officer shall, without a warrant from a Magistrate, enter any premises, house, building or enclosure for the purpose of effecting any search therein or arresting any person who has committed or is reasonably suspected of having committed or of being about to commit any offence unless -

(a) the offence is a crime other than a crime punishable under the Press Act and there is imminent danger that the said person may escape or that the corpus delicti or the means of proving the offence will be suppressed; or

(b) the person is detected in the very act of committing a crime other than a crime punishable under the Press Act; or

(c) the intervention of the Police is necessary in order to prevent the commission of a crime other than a crime punishable under the Press Act; or

(d) the entry is necessary for the execution of any warrant or order issued by any other competent authority in the cases prescribed by law; or

(e) the arrest is for the purpose of apprehending a person who is unlawfully at large after escaping from lawful arrest or detention; or

(f) the entry is necessary for purposes of:
(i) executing the arrest, or ascertaining the whereabouts, of a person in respect of whom an alert has been entered in the Schengen Information System and there is an imminent danger that the said person may escape; or
(ii) discovering any property in respect of which an alert has been entered in the Schengen
Information System and there is an imminent danger that the property may be concealed, lost, damaged, altered or destroyed.

(2) The expression "enclosure" does not include any plot of land enclosed by rubble walls.

(3) A warrant may also be issued by a Magistrate as mentioned in subarticle (1) for the purpose of:
(a) effecting the arrest or ascertaining the whereabouts of a person in respect of whom an alert has been entered in the Schengen Information System; or
(b) discovering and seizing any property in respect of which an alert has been entered in the Schengen Information System.


355F. In cases where a police officer is empowered to enter into any of the places mentioned in the last preceding article, it shall be lawful for such officer to open or break any door or window, if, after giving notice of his office and object, he cannot otherwise obtain entry.


355G. (1) Any entry and search warrant issued under this Sub¬title and any search or seizure made under the provisions of this Sub-title shall not extend to legal privilege or to any excluded material.

(2) An entry and search warrant issued under this Sub-title shall be deemed to have been granted to the police officer or officers executing it.

(3) Without prejudice to the right of obtaining a new warrant for the same purpose, an entry and search warrant may not be executed after the lapse of one month from the date of issue.


355H. No warrant of entry and search may be executed after sunset unless the Magistrate has otherwise authorised in the warrant, or unless the executing Police officer has reasonable cause to believe that the purpose of the entry and search will be frustrated if the execution of the warrant is delayed.


355I. The executing officer shall hand over a copy of the warrant to the person occupying and present at the place searched or to any other person who appears to the said officer to be in charge of the same place and who happens to be present during the search. If there is no person present who appears to the executing officer to be in charge of the premises the copy of the warrant shall be left in an easily visible place on the premises.


355J. A search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued:
Provided that if, in the course of the search, offences other than the offence or offences mentioned in the warrant are discovered, the search may extend to the extent required for the purposes of such other offences.

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 V
SEIZURE AND RETENTION

355P. The Police, when lawfully on any premises, may seize anything which is on the premises if they have reasonable grounds for believing that it has been obtained in consequence of the commission of an offence or that it is evidence in relation to an offence or it is the subject of an alert in the Schengen Information System and that it is necessary to seize it to prevent it being concealed, lost, damaged, altered or destroyed.


355Q. The Police may, in addition to the power of seizing a computer machine, require any information which is contained in a computer to be delivered in a form in which it can be taken away and in which it is visible and legible.


355R. The Police shall always issue to the person on the premises or in control of the thing seized a receipt for anything seized and on request by any such person, the Police shall, against payment and within a reasonable time, supply to him photographs, or a film, video recording or electronic image or copies of the thing seized, unless the investigating officer has reasonable grounds for believing that this would be prejudicial to the investigation or to any criminal proceedings that may be instituted as a result thereof.


355S. (1) Anything which has been lawfully seized by the Police may be retained so long as is necessary in all the circumstances.

(2) Without prejudice to the generality of the aforesaid, anything lawfully seized by the Police under this Code may be retained for use as evidence at the trial or for forensic examination or any other aspect of the investigation, or in order to establish the thing’s lawful owner.

(3) The Commissioner shall provide for the proper custody of anything seized.


355T. A person who is the rightful owner of a thing seized and retained may, unless criminal proceedings in the course of which the thing seized has been exhibited or is to be exhibited are pending before any court, make an application to a Magistrate for its restitution, and the Magistrate may, after hearing the Police, by a decree order its release either unconditionally, or under such conditions as may be necessary to preserve the evidential aspects of the thing.


355U. Unless a thing is liable to forfeiture, nothing shall be retained if a photograph, film, video recording or electronic image or a copy of the thing would be sufficient:
Provided that before releasing the thing the Police may, where they deem so necessary, apply to a Magistrate for a repertus to be drawn up and the provisions of Title II of Part II of Book Second of this Code shall apply.

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

355AV. The investigating officer may in person, by application or by facsimile, request a Magistrate to authorise the necessary procedure -
(a) where he has reasonable grounds to require the taking of intimate samples from the person arrested; or
(b) to take photographs, a film, video recording or electronic image of intimate parts of the body of the person arrested; or
(c) where the person arrested withholds his consent for any procedure which the investigating officer may carry out according to law with the consent of the person arrested:
Provided that where the request falls under paragraph (a), the provisions of article 355AW shall apply and, if the request falls under paragraph (b), the provisions of article 355AP shall mutatis mutandis apply.


355AW. Subject to the provisions of articles 355AV and 355AX, an intimate sample may be taken from a person arrested only if his appropriate consent is given.


355AX. (1) Upon a request under article 355AV(a), the Magistrate shall obtain all such information from the investigating officer to enable him to decide on whether the request is justified or not.

(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:
(a) the nature of the request and the reasons thereof;
(b) the consequences of giving his consent and of refusing consent as provided in article 355AZ; and
(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 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.


355AY. Where an intimate sample is to be taken under these articles the provisions of article 355AP shall apply.


355AZ. Where the appropriate consent to the taking of an intimate sample from a person was refused without a good cause, in any proceedings against the person for an offence, those who have to judge of the facts may draw such inferences from the refusal as appear proper and the refusal may, on the basis of such inferences, be treated as, or as capable of amounting to corroboration of any evidence against the person in relation to which the refusal is material.


355BA. (1) The investigating officer may, with the appropriate consent in writing of the person arrested, cause to be taken:
(a) fingerprints, palm-prints from the person arrested;
(b) photographs of the person arrested or of non-intimate parts of his body;
(c) non-intimate samples from the person arrested.

(2) The person arrested may request in writing that:
(a) his fingerprints, palm-prints or other prints,
(b) photographs of his person or of non-intimate parts of his body,
(c) non-intimate samples from his person,
be taken and any such request shall be complied with by the investigating officer with the assistance of any competent person as may be necessary.

(3) The person arrested may also request in writing the investigating officer to carry out any of the procedures mentioned in article 355AV(a) and (b), and any such request shall be referred without delay to a Magistrate. The Magistrate shall authorise the procedure requested after verifying the request made by the person arrested and the provisions of article 355AP shall apply where appropriate.


355BB. Samples from a person other than a person arrested may only be taken with that person’s prior consent in writing:
Provided that for the taking of an intimate sample a Magistrate’s authorisation must also be obtained upon application.


355BC. The provisions of article 355BA shall mutatis mutandis apply to any person, not being an arrested person, who makes a request for the carrying out in his respect of any procedure referred to in that article provided the request is made in writing and contains a declaration that the person making the request has reason to believe that there is the likelihood that the failure to carry out the
requested procedure is likely to result in his being arrested or detained.

BOOK SECOND
LAWS OF CRIMINAL PROCEDURE

PART III OF MATTERS APPLICABLE TO ALL CRIMINAL TRIALS

Title IV OF PROPERTY BELONGING TO THE PERSON CHARGED OR ACCUSED OR TO OTHER PERSONS AND CONNECTED WITH CRIMINAL PROCEEDINGS

667. Any property connected with criminal proceedings shall, subject to the following provisions of this Title, be held by the registrar until the conclusion of such proceedings including any proceedings of appeal.


668. (1) All property connected with criminal proceedings shall be delivered by the court to the registrar and shall, subject to the following provisions of this Title, remain in the custody of the registrar except when required by the court for the hearing of such proceedings.

(2) The Minister responsible for justice may make regulations providing for the registration and preservation of any property connected with criminal proceedings and for the manner in which a record is to be kept of the movements of any such property.


669. (1) The registrar shall ensure that all property delivered to him is properly catalogued, stored and preserved and kept in a secure place to be determined by the registrar.

(2) For the purposes of this article, the registrar may, with the approval of the Minister responsible for justice, appoint other persons to hold property or classes of property on his behalf under such terms and conditions as the Minister may think fit provided that the names of such persons shall be published in the Gazette.

Rome Statute

Article 93 Other forms of cooperation

1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:

(j) The protection of victims and witnesses and the preservation of evidence;