Information about Fair Trials. Definitions of key legal terms. Information about criminal proceedings and defence rights in Malta

Transcription

1 CRIMINAL PROCEEDINGS AND DEFENCE RIGHTS IN MALTA This leaflet covers: Information about Fair Trials Definitions of key legal terms Information about criminal proceedings and defence rights in Malta Useful links This booklet was last updated in 1

2 About Fair Trials Fair Trials is a non-governmental organisation that works for the right to a fair trial according to internationally-recognised standards of justice. We believe the right to a fair trial is an essential part of a just society. Each person accused of a crime should have their guilt or innocence determined by a fair and effective legal process. But the right to a fair trial is not just about protecting suspects and defendants; it also makes societies safer and stronger. Without fair trials, trust in justice and in government collapses. Despite the importance of fair trials being recognised by the international community, this basic human right is being abused day-in-day-out in countries across the globe. We re working to put an end to these abuses, towards realising our vision of a world where every person s right to a fair trial is respected. If you think an important question is not covered by this note, please let us know. We would appreciate it if you could also take a few moments to give us some feedback about this note. Your comments will help us to improve our services. Fair Trials includes Fair Trials International and Fair Trials Europe. Fair Trials International is a registered charity (no ) and in 2010 was incorporated with limited liability in England Wales (no ). Fair Trials Europe is a registered public foundation in Belgium (registered number ). We were initially founded in 1992 with the name Fair Trials Abroad. If you require this leaflet in large print, please contact using the details at to the end of this document. 2

3 IMPORTANT This leaflet was last updated in. The information contained in this document is provided for information purposes only and is not intended as legal advice, nor does it constitute legal advice. Whilst we endeavour to keep the information up to date and correct, Fair Trials makes no representations or warranties of any kind, express or implied about the completeness, accuracy, reliability, suitability or applicability to individual cases of the information contained in this leaflet. Any reliance you place on such material is therefore strictly at your own risk. Fair Trials disclaims any liability to the fullest extent permissible by law for any loss or damage of any kind arising from the use of the information provided. You should always seek professional legal advice from a lawyer qualified to practice in the jurisdiction you are in. 3

4 CONTENTS DEFINITIONS OF KEY LEGAL TERMS... 5 INFORMATION ON CRIMINAL PROCEEDINGS AND DEFENCE RIGHTS IN MALTA... 8 Q1. WHERE DO THE LAWS OF MALTA APPLY?... 8 Q2. WHAT ARE MY RIGHTS UPON ARREST?... 8 Q3. WHEN WILL I KNOW ABOUT THE CASE AGAINST ME? Q4. HOW DO I FIND A LAWYER? WHAT IS THE ROLE OF MY LAWYER? Q5. WILL I HAVE TO STAY IN PRISON UNTIL MY TRIAL STARTS? IF SO, FOR HOW LONG? Q6. HOW LONG BEFORE MY CASE GOES TO TRIAL? Q7. CAN I PLEAD GUILTY? WHAT ARE THE CONSEQUENCES OF PLEADING GUILTY? Q8. WHAT HAPPENS AT TRIAL? Q9. I AM NOT HAPPY WITH THE DECISION, CAN I APPEAL AGAINST IT? HOW DO I APPEAL? Q10. I HAVE EXHAUSTED ALL LEGAL REMEDIES. WHAT OPTIONS DO I HAVE? Q11. WHAT RIGHTS DO I HAVE AS A PRISONER?. 20 Q12. CAN I GET MY SENTENCE REDUCED? Q13. CAN I GO BACK TO MY HOME COUNTRY? USEFUL LINKS

5 DEFINITIONS OF KEY LEGAL TERMS Appeal (appel): An opportunity to dispute a decision made at trial by asking a higher court to review it. This can result in the decision being overturned or changed. Arrest Warrant (mandat ta' arrest): A document authorising the police to make an arrest, search premises, or carry out some other action relating to the administration of justice. Bail (plegg): The temporary release from police custody or prison of a person accused of a crime and awaiting trial. Bar Association: An organisation whose role is to represent lawyers and help people in their dealings with lawyers. The Bar Association of Malta is called Chamber of Advocates. Charge/Indictment (tahrika/akkuża): An official statement accusing a person of committing an offence. Consulate (konsulat): The section of the embassy whose task is to assist its citizens. Court of Appeal: The court that is competent to hear appeals (i.e. challenges) made to decisions of the lower courts Court of First Instance: A lower court where a trial is initially heard. In Malta, the Court of First Instance is either the Court of Magistrates or the Criminal Court, depending on the seriousness of the accusations. Embassy (ambaxxata): The office of a government official who resides in a foreign country and represents his/her government s interests. European Court of Human Rights (Qorti Ewropea tad- Drittijiet tal-bniedem): The Court is based in Strasbourg, France, and hears human rights cases against the 47 countries which make up the Council of Europe (which is different from the European Union). 5

6 Investigative Judge (magistrat inkwirenti): A judge who performs an examining role and is actively involved in the conduct of investigations. Judge (imħallef): A person with authority to hear and decide on cases in a court of law. Judgment (sentenza): A decision on a case provided by a judge in a court of law. Lawyer (avukat): A person whose profession is to give legal advice and assistance to clients and represent them in court or in other legal matters. Legal Aid (għajnuna legali): Financial assistance provided to a person who needs a lawyer and who cannot afford to pay for one. Plea Bargain (Eċċezzjoni-negozjar): A procedure which allows the defendant to plead guilty in exchange for a less severe sentence. Police Custody (kustodja tal-pulizija): Detention of a suspect by the police after arrest Pre-trial Detention (detenzjoni qabel il-proċess): Detention in prison during the investigations (and often during the trial itself as well), which happens before the decision on guilt or innocence is made by the court. Public Prosecutor (prosekutur pubbliku): A person who conducts a case against a person who is accused of a crime. Remand (rimandar): The act of sending a person, accused of a crime, into prison until the trial. Sentence (sentenza): The punishment assigned to a person convicted of a crime as fixed by a court of law. Victim is known as vittma in Maltese. 6

7 Warrant (mandat): A document issued by a legal or government official authorising the police to make an arrest, search premises, or carry out some other action relating to the administration of justice. Witness is known as xhud in Maltese. 7

8 INFORMATION ON CRIMINAL PROCEEDINGS AND DEFENCE RIGHTS IN MALTA We have prepared these notes with the assistance of local criminal lawyers, who tried to describe how things happen in practice, i.e. in the real world. Even within one country, however, practice can vary greatly from one place to another and it is therefore possible that your experience will sometimes differ from the descriptions below. This document does not constitute legal advice and only provides general information. If you need advice in relation to your specific case, or if you are concerned about a possible violation of your rights, you should discuss this with your local lawyer. Q1. WHERE DO THE LAWS OF MALTA APPLY? The laws of Malta apply to the entirety of the Republic of Malta, consisting of Malta itself, and the islands of Gozo and Comino. Q2. WHAT ARE MY RIGHTS UPON ARREST? After you have been arrested, you may be held for up to fortyeight (48) hours in detention. If you have not been released within six hours from your arrest, the arresting police officer must inform a Magistrate. (a) (i) Right to information: Will the police inform me of my rights? Will this be done orally or in writing? The police should inform you about your right to a lawyer, as early as practicable before you are questioned. 8

9 If you are arrested or detained, the police should inform you of your five principle rights: the right of access to a lawyer; entitlement to legal aid; right to know on the grounds on which you are being suspected; the right to interpretation and translation; and the right to remain silent. (ii) Do I have the right to be informed of the allegations / charges against me? Yes, if you are arrested you must be informed that you are under arrest, and the reasons for your arrest must also be explained. (b) (i) The right to inform people: Do I have a right to have the consulate informed of the arrest? If you are not a Maltese citizen, it is usual for the police to suggest or recommend that you contact your embassy, consulate, or high commission, so that they are notified of your arrest, and the reasons for it. (ii) Do I have a right to inform my family of the arrest? As a general rule, you have the right to request that a relative or friend be informed of your arrest and of your whereabouts, unless the police suspect s/he might have also been involved in the same crime. (c) Do I have a right to a lawyer? 9

10 If you are arrested and detained, you should be entitled to speak to a lawyer in private as soon as practicable, in person or by telephone. You do not currently have a right to a lawyer during the police interrogation under local laws. If you know the name of a local lawyer, you can ask the police to contact him or her for you after you are arrested. If you do not know a lawyer, then the police should provide you with a list of lawyers made available by the Chamber of Advocates and you may choose a lawyer from that list. In practice however, police questioning does sometimes occur before you are given the opportunity to speak with a lawyer. (d) Do I have a right to a translator/interpreter? Yes, you have a right to an interpreter for police questioning and all court hearings for free, if you do not understand Maltese or English. In criminal cases when the services of an interpreter or of a translator are required, he or she is appointed by a court magistrate. The interpreter should translate the caution, the police's questions and your replies. He or she will also translate your conversation with your lawyer for you. (e) Do I have to talk to the police or can I remain silent during police interrogation? Will it work against me if I am silent? You have the right to remain silent. Anything that you say can be recorded and used during the trial. However, you should be aware that if you choose to seek advice from a lawyer, and then exercise your right to remain silent afterwards, such silence could be used against you at trial. 10

11 Q3. WHEN WILL I KNOW ABOUT THE CASE AGAINST ME? The police will give you some general information about the accusations against you, but you will know exactly what you are being charged with during your first court hearing, when a copy of the charges will be handed to you or to your lawyer. In less serious cases where you are not taken to court under arrest, you will receive a charge sheet at home, indicating what the charges are. Under recent laws, there are special procedures under which the prosecution discloses evidence to you and your lawyer, but in practice, it us more likely that you will be informed about the evidence against you whilst your case is being heard in court. Q4. HOW DO I FIND A LAWYER? WHAT IS THE ROLE OF MY LAWYER? (a) How do I find a lawyer? You can get in touch with the Chamber of Advocates, who may be able to help you identify a local lawyer. If you are not a Maltese citizen, your local embassy or consulate may also be able to help. (b) I cannot afford to pay for a private lawyer, what should I do? If you cannot afford to pay for a private lawyer, you could be entitled to a court-appointed lawyer on legal aid. You cannot choose which specific lawyer is appointed for you in this way. There is no specific test to calculate your eligibility for legal aid based on your earnings, but as a general rule, you are entitled to legal aid if you are out of work. 11

12 (c) What is the role of my lawyer? Will s/he investigate the case? Your lawyer s role is to advise you and to represent you in criminal proceedings, to ensure that your rights are protected. Lawyers in Malta cannot really investigate the case, and they have a very limited role in the criminal investigations. They are not allowed to communicate with prosecution witnesses in any way. (d) I am unhappy with my lawyer: How can I change lawyer? How can I complain about my lawyer? If you have appointed a lawyer privately, you must inform your lawyer that you no longer wish to be assisted by him/her. Before engaging another lawyer, you must first settle all pending fees and costs for work already carried out. If you have been appointed a lawyer by the court on legal aid, you can make ask the court to appoint a different one. There is no guarantee that the court will grant such a request. The Commission for the Administration of Justice handles all complaints against lawyers in Malta. A committee of five lawyers reviews the complaints, and then make recommendations to the Commission for the Administration of Justice on any disciplinary action which is deemed appropriate. Q5. WILL I HAVE TO STAY IN PRISON UNTIL MY TRIAL STARTS? IF SO, FOR HOW LONG? The information given below is specific to Malta. For general information and tips about how to obtain your release prior to your trial, please refer to our note of advice on Applying for Release Pending Trial. (a) Will I have to stay in prison until my trial starts? 12

13 Once the arrest has been validated by the magistrate, you can, in theory, be remanded in custody until the criminal proceedings are brought to an end. If you are a foreigner, the court usually refuses bail unless you have a fixed address in Malta. However it may be possible in certain circumstances to get conditional release. (b) How long can I be kept in prison before my trial starts? There are laws on the maximum time limits for pre-trial detention, depending on the stage of your criminal proceedings, and the sentence that you could be handed down. The court has to release you once you have spent the maximum period in pre-trial detention, but it does not do this automatically - you still need to make a bail application. During the initial stages of criminal proceedings while it is the prosecution s turn to produce evidence in court, the time limits are as follows, and they start running from day of first appearance: (i) (ii) (iii) 12 months if you are accused of an offence with a maximum sentence of less than 4 years; 16 months if you are accused of an offence with a maximum sentence of between 4 and 9 years; and 20 months if you are accused of an offence with a maximum sentence of 9 years or more After the prosecution has rested its case, the time-frames are as follows, and they start running from the day the Attorney General issues the Bill of Indictment (Att ta' Akkuza or Nota ta' Rinviju): (i) (ii) 4 months if you are accused of an offence with a maximum sentence of less than 6 months; 8 months if you are accused of an offence with a maximum sentence of between 6 months and 4 years; 13

14 (iii) (iv) (v) 12 months if you are accused of an offence with a maximum sentence of between 4 and 10 years; 24 months if you are accused of an offence with a maximum sentence of between 10 and 15 years; and 30 months if you are accused of an offence with a maximum sentence of over 15 years. These time limits (according to the wording of local laws) apply until the final judgment in criminal cases, so they apply for the duration of any appeal proceedings after being convicted. These time limits do not apply in cases if you are accused of any crime against the safety of the government, or of a crime punishable with life imprisonment. In these cases, it is up to the President of Malta has the power to grant the person temporary release, subject to any conditions s/he deems fit to impose. Malta has been criticised by the European Court of Human Rights on several occasions for keeping suspects in detention for lengthy periods before their trials. (d) How and when can I apply for release while waiting for trial? You can apply for bail at the first court hearing, and you have the right to apply for bail at any stage of the proceedings. (e) Can I go back to my home country if I have been released pending my trial? Most foreigners have their travel documents (such as passports) confiscated retained by the court to prevent a person leaving the island, as a condition of their release. Otherwise you may be permitted to leave. You should check with your lawyer to find out whether your bail conditions permit you to leave Malta until your trial. Permission to travel temporarily may be sought by means of a 14

15 written request (rikors), stating date of departure, destination country, date of return, and reason for travelling. A cash deposit may be required as one of the conditions of being allowed to travel. This will be returned when you return Malta, and go to hand over your documents again. (f) What will happen if I breach the conditions of my release? You could lose your bail, and go back to prison pending trial (unless the maximum statutory period for pre-trial detention has expired). Breaching bail conditions may also result in any money deposited or promised as part of the conditions of your release being confiscated. You could also be charged with the offence of breaching bail conditions which can result in an additional prison sentence.. (g) Do I need a lawyer to apply for release? You do not require a lawyer to apply for bail at any of your hearings, but in most cases, you will have better chances of success if you are assisted by your lawyer. Q6. HOW LONG BEFORE MY CASE GOES TO TRIAL? There is no specific rule about the maximum period of time in which a case must proceed to trial. Depending on the circumstances and complexity of the investigation, it can take over two years before a trial begins. Malta has been criticised for the delays in its judicial system. (a) There are always delays with my case, does that mean my lawyer is doing a bad job? Delays often occur at various stages in proceedings, but this is not necessarily the fault of your lawyer. 15

16 Q7. CAN I PLEAD GUILTY? WHAT ARE THE CONSEQUENCES OF PLEADING GUILTY? You should always seek advice from a lawyer before pleading guilty. If you are facing less than 10 years in prison for your charges, you will not be entitled to a full trial, if you plead guilty, and your case will proceed to sentencing. In April 2014, the Maltese government announced new changes to the law which may allow plea-bargaining in criminal cases that carry a minimum prison sentence of four years. This means that you may be able to negotiate a lower sentence for your accusations in return for a guilty plea. If you are thinking about pleading guilty, we strongly advise that you discuss the impact of this new law with your local lawyer. Q8. WHAT HAPPENS AT TRIAL? You can be tried by either the Court of Magistrates or the Criminal Court, depending on the seriousness of the accusations against you. If the maximum sentence you face is 6 months in prison, you will be tried by the Court of Magistrates. If the maximum sentence is between 6 months and 10 years, you can be tried either at the Court of Magistrates Court or the Criminal Court. If you are facing more than 10 years in prison, you will be tried at the Criminal Court. Proceedings at the Criminal Court take place before a jury. They are also lengthier and more complicated than trials at the Court of Magistrates. (a) Do I have to be present? Your trial cannot take place in your absence. (b) Can I ask for the trial to take place in my home 16

17 country? No. (c) Is there a jury? Trials at the Criminal Court take place before a jury consisting of 9 members. If you are accused of an offence for which the maximum sentence is between 6 months and 10 years, you could be tried at the Court of Magistrates without a jury, so long as you and the attorney general agree to this. If you are accused of an offence for which the maximum sentence is over 10 years, you can request the Criminal Court to decide on your case without a jury. If you are being tried for a drug offence, the Attorney General has the power to decide whether you should be tried by the Court of Magistrates, or the Criminal Court. If the Attorney General decides that you should be tried at the Criminal Court, the maximum sentence you could face increases to life imprisonment. You have the right to challenge this decision once by making an application. (d) Can my lawyer call and cross-examine witnesses? Yes, you have the right to call and cross-examine witnesses as part of your defence. (e) I don t speak the language of the court, do I have a right to an interpreter? Is it free? Trials can take place in either Maltese or English. If you cannot speak English, the trial will be conducted in Maltese and you will be assisted by an interpreter, whose services should be provided for free. 17

18 (f) Will the written evidence be translated for me? No. (g) Will the interpreter also help me if I need to talk to my lawyer? If you need an interpreter, s/he will also translate your conversation with your lawyer for you. (h) Why is the victim taking part in the trial? In Malta, depending on in what type of court the case is being tried, the victim may place a very active role in criminal proceedings as a civil party, and they claim civil compensation for the harm caused by the crime. If the case is being prosecuted by the police before a Court of Magistrates, the victim (or his/her lawyer) can present evidence and cross-examine witnesses. If the case is prosecuted by the Attorney General or a public prosecutor in the Criminal Court, the victim can only attend the hearing and present arguments related to the sentence (once the jury has found a defendant guilty). (i) Will I be informed of the decision of the court on the day of the trial? In most cases, a separate date is set down for the judgment to be given, after your trial hearings have been concluded. You will also be given a written copy of the judgment. (j) Can I receive a copy of the judgment in my mother tongue? No. 18

19 (k) I was tried in my absence and was not informed of this, what can I do? Trials that take place in the absence of the accused (trials in absentia ) are not permitted under local laws. If this happens for any reason, you will need to file a request for a retrial. Q9. I AM NOT HAPPY WITH THE DECISION, CAN I APPEAL AGAINST IT? HOW DO I APPEAL? You can appeal against the decision at the trial, and you can also appeal against the sentence. You may appeal by filing an appeal application before the Court of Criminal Appeal. If you were tried by the Court of Magistrates, you must submit an appeal within eight working days. If you were tried by the Criminal Court, you must file your appeal within fifteen working days from the date of the sentence. (a) Do I need to pay my lawyer more money if there is an appeal? Lawyers usually charge a fee for writing the appeal application, and for the court appearances during the appeal hearing. (b) What is the timeframe for an appeal to take place? There is no specific time limit as to when your appeal will be heard, but it usually takes several months. If you are sentenced by the Court of Magistrates, your sentence will be suspended until the final outcome of the appeal. 19

20 If you are sentenced to imprisonment by the Criminal Court then you will be sent to prison immediately. It is possible to request bail pending the outcome of the appeal but this is generally not granted. (c) Could things get worse during the appeal? If I am acquitted, can the prosecution appeal? No, if your appeal is unsuccessful, the decision of the Court will be confirmed, unless the prosecution also appealed. The prosecution can appeal against acquittals. Q10. I HAVE EXHAUSTED ALL LEGAL REMEDIES. WHAT OPTIONS DO I HAVE? (a) Is it possible to get my case reviewed? If you think that there was a breach of your human rights, you can take your complaint to the First Hall of the Civil Court in its Constitutional jurisdiction. It might also be possible to file a request for a re-trial if new evidence is found, but there are no clear procedures for this under local laws. (b) Can I apply for a pardon? The president is allowed to grant a pardon (but not an amnesty) to convicted criminals. In practice this is rarely done. Q11. WHAT RIGHTS DO I HAVE AS A PRISONER? (a) Do I have rights as a prisoner? Where can I find out about my rights? You should basic be given rights, including your right to food, water, basic necessity, security, and the right to see your lawyer. 20

21 Your lawyer and the prison officers/managers can provide you with more information on your rights. (b) What can I do if my rights are violated? Where can I get assistance regarding my welfare issues, regarding abuse and mistreatment? In the first instance you can report any rights violations to the Prison Warden. If s/he does not deal with the complaint satisfactorily, you may wish to contact the Maltese ombudsman who investigates complaints about the activities, of governmental bodies, including activities affecting human rights and problems involving prisoners and detainees. You should raise any serious welfare issues with your lawyer, and if you are not a Maltese citizen, you may also be able to get some help from your local embassy or consulate. Q12. CAN I GET MY SENTENCE REDUCED? Unless you have been sentenced to life imprisonment, most Maltese prisoners serving a prison sentence of over a year can get parole. Foreign nationals who are due to be deported at the end of their sentence are not eligible for parole. Your eligibility for parole depends on your sentence. If you have been sentenced to 1-2 years, you need to serve a third of your sentence before you are eligible for parole. You need to have served half if you have been sentenced to 2-7 years, and 58%, if you have been sentenced to over 7 years. (a) What would help me get an early release? Good behaviour may help you get early release. Your participation and performance in educational and rehabilitation 21

22 programmes could, for example, be a way in which your behaviour is assessed. (b) I have been sentenced to pay a fine, what will happen if I don t pay it? If the fine is not paid, it will be converted into further time in prison. Q13. CAN I GO BACK TO MY HOME COUNTRY? (a) Can I serve my prison sentence in my home country? This may be possible if there is an agreement between Malta and your home country that would allow such transfers to take place. Please see our note on Prisoner Transfers for more information. (b) Can I be expelled instead of serving my sentence? No. (c) Is there a risk that I will be deported after serving my sentence? There is a risk that you could be deported after serving your sentence. USEFUL LINKS ORGANISATION MANDATE CONTACT DETAILS LAW GOVERNING BODIES 22

23 Chamber of Advocates The Malta Chamber of Advocates represents the interests of lawyers in Malta, and is also responsible for ensuring high professional standards. Complaints about lawyers can be lodged with the Chamber of Advocates. The Website of the Chamber of Advocates has an online directory of local lawyers. Languages: Website available in English Website: E: T: +356 (0) F: +356 (0) The Chamber of Advocates, Superior Courts, The Law Courts, Republic Street, Valletta VLT 2000 LEGAL AID Registrar of Courts The Registrar of Courts has a list of lawyers appointed to provide legal aid in criminal cases. Registrar of Courts Triq Ir-Repubblika Il-Belt Valletta Malta OMBUDSMEN and COMPLAINTS COMMITTEES Ombudsman s Office The Ombudsman s mandate is to investigate complaints about actions taken by public authorities, including allegations of human rights violations. In cases where the Ombudsman has found that the public authority under investigation has acted improperly, it may issue criticisms and recommendations to help resolve the complaint. The Ombudsman cannot handle complaints about private individuals, such as lawyers, and about court decisions. Complaints need to be submitted within 6 months of the event on Website: mt E: office@ombudsman.or g.mt T: +356 (0) F: +356 (0) St Paul Street Valletta VLT

24 which the complaint is based by post, or online. Languages: Website available in Maltese and English INTERPRETERS Criminal Court Registry of interpreters/transl ators In criminal cases when the service List available at: interpreter or of a translator are require she is appointed by a magistrate. ces.gov.mt/courtservic es/courtexperts/# NGOs HUMAN RIGHTS Aditus Foundation The Aditus Foundation is an independent, non-profit organisation that works to advocate for the better protection of human rights in Malta. Aditus also aims to provide information and advice to individuals, and they can sometimes intervene in cases. Languages: Website available in English Website: E: info@aditus.org.mt T: +356 (0) F: +356 (0) Old Mint Street, Valletta VLT 1513 ASSISTANCE FOR PRISONERS Mid-Dlam għad- Dawl Foundation The Foundation works to monitor prison conditions Malta and provides advice and support for prisoners and their families. Languages: Website available in English Website: mddmalta.com Tel: +356 (0) , Triq Matty Grima, Bormla BML

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26 Our vision: A world where every person s right to a fair trial is respected. THANK YOU Fair Trials would like to thank the law firms and individual practitioners, including Ann Spiteri (Mifsud Bonnici and Camilleri Advocates, Malta), who have generously given their time and expertise to help produce these legal guidance notes. Fair Trials is grateful to all of its funders, including: Co-funded by the European Union For a full list of our funders see Fair Trials T: +44 (0) Temple Chambers F: +44 (0) /7 Temple Avenue casework@fairtrials.net London EC4Y 0HP United Kingdom LON /10 26