Criminal action can be brought against any individual who commits a crime and over whom the Maltese authorities have jurisdiction. A criminal action is initiated upon the police receiving either a report, information or a complaint, following which an investigation is launched whereby the police gathers evidence to determine whether there is sufficient proof to suspect that a crime has been committed or not, and to deduce who seems to be responsible.
Upon confirming reasonable cause to suspect that a crime has been committed and upon identifying the person responsible, the police will proceed with asking a magistrate to issue a warrant of arrest to arrest the suspect. It is noteworthy that the police can only carry out an arrest without the issuance of a warrant in exceptional circumstances. Upon the police carrying out the arrest, the suspect may be interrogated.
Then commences the ‘Pre-Trial Detention’ period, during which the police should determine whether it intends to immediately bring the suspect before a court under arrest, or whether it will be releasing the person, on the grounds that the reasonable suspicion no longer exists, or else in order to further investigate the case before deciding whether or not to take the matter to court.
Rights during the investigation and the judicial process
Prior to commencing with the questioning during the investigation stage, the police should and must inform the detained individual of their rights and such rights include:
It is essential that where an individual is informed that they have been arrested, the police also explain the grounds under which the arrest has been carried out. Whilst the actual charges are read out at the first hearing, providing for the specific articles of the law under which said individual is being accused, nonetheless, the police should provide information regarding the accusations against the said individual.
It is noteworthy that said information must be given in a language which the suspect understands and thus if they do not, a translation of said information must be provided. If the suspect is a foreigner, they may request the appointment of an interpreter/translator.
Generally, one may also have the right to request to inform a relative or friend of their arrest and whereabouts, unless the police have reasonable cause to suspect that the said individual may have been involved in the same crime.
One of the most essential rights of a suspect is that of being allowed the assistance of a lawyer. It would be wise for the suspect to request the assistance of his lawyer immediately upon being informed of the arrest. In fact, the law holds that such right shall be exercised “in such time and in such a manner so as to allow him to exercise his rights of defence practically and effectively.”
In the case that the said individual does not have his own lawyer, they may request the list of lawyers which is drawn up by the Chamber of Advocates and the Chamber of Legal Procurators, from which the suspect may select a lawyer of his own choice. Alternatively, the suspect may also opt to appoint a lawyer for legal aid.
Another cardinal right of a suspect is that of remaining silent so as to not incriminate himself. This right applies not only throughout the investigation stage but also during the judicial process and questioning. One may wish to refrain from answering any direct questions made which may lead to self-incrimination. Naturally, if assisted by a lawyer, he would explain better what one should and should not answer to.
Seeking medical attention and treatment is another essential right pertaining to the suspect. Anyone who requires a doctor or the administering of medicine shall inform the police, who are obliged to provide for the required assistance.
The law holds that a person cannot be held under arrest for a longer period than necessary, which in any case cannot be longer than forty-eight (48) hours. During said period, the police must determine whether they intend to bring the suspect before a court under arrest, or whether they will be releasing him on the grounds that the reasonable suspicion no longer subsists, or else in order to further investigate the case before deciding to take the matter to court.
In case of vulnerable people, if due to the psychological and physical condition of the suspect or the nature of the crime, it is deemed necessary to detain the arrested person at the police custody lockup during the investigation, they are placed under ‘constant watch’, with a police officer physically guarding the cell 24/7, in the best interests of the detainee’s health.
As is the case of whichever suspected individual, if they ask for any type of medical assistance, this is to be provided for immediately, and this shall also include transport to a clinic or hospital, according to the circumstances. Upon having examined the suspect, and the medical practitioner deems that said individual is a vulnerable person, he may advise that they are not to be held in a cell. In such a case, the investigating official is informed immediately and remedial action, such as the granting of bail, is administered accordingly.
In addition to the right to a translator or interpreter, an accused foreigner could potentially acquire permission to return to his country pending trial, subject to the bail conditions. Most foreigners have their travel documents confiscated to prevent them from leaving Malta and absconding responsibility. However, permission to travel may be acquired by referring to a lawyer who may file an application (rikors) to the court, together with a cash deposit (if necessary), and an indication of the date of departure, date of arrival, destination country and reason for travelling.
The nature of the crime is the primary determinant of the legal time restrictions for inquiry. According to the law in the criminal sphere, there is a penalty for every crime.
For example, prescription, establishes the bounds within which a crime can be investigated legally. When this period passes, prescription takes effect, and the police's investigation into that specific offense is no longer admissible. It is also important to note that prescription does not begin to run in a criminal case if the identity of the alleged perpetrator is unknown, not because of a deficiency on the part of the investigating official. An example of the latter is a homicide case, whereby the victim is known but the police have no clue as to who the culprit might be.