Criminal Code (Cap. 9), article 534AF

534AF. (1) Where a person is arrested and detained at any stage of the criminal proceedings, an y documents in the possession of the Police which are related to the specific case and which are ess ential to challenge effectively the lawfulness of the arrest or detent ion, shall be made available to the a rrested person or to his lawyer . (2) The person suspected or accused shall have access, which shall be free of charg e, to all material evi dence in the posses sion of the Police, whether for or agai nst the said suspect or the accu sed, or to his lawyers in order to safeguard the fairness of the procee dings and to prepare his defence. (3) Without prejudice to sub-art icle (1), access to the material evidence referred to in sub-article (2) shall be granted in due time to allow the effective exercise of the rights of the defence an d at the latest upon submission on the merits of the accusation. Where further material evidence comes into the possession of the Poli ce, access shall be granted to it in due time to allow for it to be considered by the suspect or the accused or by his lawyer. ( 4 ) N o t w i t h s t a n d i n g t h e p r o v i s i o n s o f s u b - a r t i c l e ( 2 ) a n d ( 3 ) and provided that this does not prejudice the right to a fair t rial, after hearing the prosecution, a c ourt or magistrate may refuse access to certain materials if such access may lead to a seriou s threat to the life or the fundame ntal rights of another person or if CRIMINAL CODE [CAP. 9. 331 such refusal is strictly necessary to safeguard an important pu blic interest or where it could prejudice an ongoing investigation o r national security. Records. Added by: IV .2014.25. 534AG . When a suspect or an accused in any criminal proceedings has been assisted by an interpreter or when an oral translation or an oral summary of essential documents has been provided in accordance with law, or when the said suspect or accused has waived the right to translation of essential docume nts as provided for in article 534AD(5), a record of this fact shal l be made in the acts of the rele vant criminal proceedings. Added by: XVIII.2020.8. Title VII OF THE RIGHTS OF C HILDREN WHO ARE SUSPECTS OR ACCUSED PERSONS The measures in this Title provi ded for the transposition of Di rective (EU) 2016/800 of the European Par liament and of the Council of 11 May 2016 on procedural safeguard s for children who are suspects or accused persons in criminal proceedings. Rules concerning certain rights of children. 534AGA. This Title lays down rules concerning certain rights of children who are: (a) suspects or accused persons in criminal proceedings; or (b) subject to European arrest warrant proceedings pursuant to Framework Decision 2002/584/JHA (hereinafter referred to as "requested persons"). Scope.534AGB. For the purpose of this Title, the expression: "child" means a person below the age of eighteen (18): Provided that where it is uncertain whether a person has reached the age of eighteen (18) , that person shall be presumed to be a child; "holder of parental responsib ility" means any person having parental responsibility over a child; "Minister" means the Ministe r responsible for justice; "parental responsibility" means all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement havi ng legal effects, including rights of custody and ri ghts of access . 332 CAP . 9.] CRIMINAL CODE Interpretation. 534AGC. (1) This Title applies to children who are suspects or accused persons in criminal proceed ings, until the final determ ination of the question on whether the suspect or accused person has committed a criminal offence, including, where applicable, sent encing and the resolution of any appeal. (2) This Title applies to children who are requested persons from the time of their arrest in the executing Member State, in accordance with a rticle 534AGP. (3) With the exception of article 534AGE, article 534AGH(3)(b), and article 534AGN, insofar as those provisions r efer to a holder of parental responsibility, the provisions of this Title shall apply to persons as referred to in sub-articles (1) and (2), wh ere such persons were children when the y became subject to the proceedin gs but have subsequently reached the age of eighteen (18), and the application of this Title, or cer tain provisions thereof, is ap propriate in the light of all the circumstan ces of the case, including the m aturity and vulnerability of the person concerned: Provided that this Title shall not apply to persons who have reached the age of twenty-one (2 1) at any stage of the proceedi ngs. (4) Nothing in this Title shall: (a) affect the application of the provisions in Title II, Part I, Book First which determine the age of criminal responsibility; (b) prejudice the right of access to a lawyer in accordance with Sub-title IX of T itle I of Part I, Book Second. (5) Sub-articles (4) and (5) of article 355AU shall apply mutatis mutandis to this Title. Right to information. 534AGD. (1) When children are made aware that they are suspects or accused persons in criminal proceedings, they shall be informed promptly of their rights in accordance with Title VI, Part I of Book Second and in accordance with this Title, and about the ge neral aspects of the conduct of the proceedings. (2) The information referred to in sub-article (1) shall be provided: (a) promptly when children are made aware that they are suspects or accused persons, in respect of: (i) the right to have the holder of parental responsibility informed, as provided for in article 534AGE; CRIMINAL CODE [CAP. 9. 333 (ii) the right to be assisted by a lawyer, as provided for in article 534AGF; (iii) the right to protection of privacy, as provided for in article 531; (iv) the right to be accompanied by the holder of parental responsibility during stages of the proceedings other than court h earings, as provided for in article 534AGN(4); (b) at the earliest appropriate stage in the proceedings, in respect of: (i) the right to an individual assessment, as provided for in article 534AGG; (ii) the right to a medical examination, including the right to medical assistance, as provided for in article 534AGH; (iii) the right to limitation of deprivation of liberty and to the use of alternative measures, including the right to periodic review of detention, as provided for in articles 534AGJ and 534AGK; (iv) the right to be accompanied by the holder of parental responsibility during court hearings, as provided for in article 534AGN(1); (v) the right to appear in person at trial, as provided for in article 534AGO; (vi) the right to effective remedies; (c) upon deprivation of liberty, in respect of the right to specific treatment during deprivation of liberty, as provide d for in article 534AGL. (3) The information referred to in sub-articles (1) and (2) shal l be given in writing, orally or both, in simple and accessible l anguage, and such information shall be noted, using the recording proced ure permitted by law. (4) Where children are provided with a Letter of Rights pursuant to Title VI, Part I, B ook Second, such a Letter shall include a reference to their r ights under this Title. 334 CAP . 9.] CRIMINAL CODE Right of the child to have the holder of parental responsibility informed. 534AGE. (1) The Executive Police or any other law enforcement or judicial author ity, as the case may be, shall pr ovide the holder of parental responsibility, as soon as possible, with th e information that the child has a right to receive, in accordanc e with article 534AGD. (2) The information referred to in sub-article (1) shall be provided to another appropriate adult who is nominated by the c hild and accepted as such by the Polic e or by any other law enforcem ent or judicial authority, as the case may be, where providing that information to the holder of parental responsibility: (a) would be contrary to th e child's best interests; (b) is not possible because, after reasonable efforts have been made, no holder of p arental responsibility can be reached or his or her identity is unknown; or (c) could, on the basis of objective and factual circumstances, substantially jeopardise the criminal proceedings: P r o v i d e d t h a t w h e r e t h e c h i l d h a s n o t n o m i n a t e d a n o t h e r appropriate adult, or where the adult who has been nominated by the child is not acceptable to the Police or other law enforcement or judicial authority, as the case ma y be, the latter shall, takin g into account the child's best interests, designate, and provide the information to, another person. That person may also be the representative of an authority or of another institution respon sible for the protection or welfare of children. (3) Where the circumstances which led to the application of sub-article (2)(a), (b) or (c) cease to exist, any information that the child receives in accordance with article 534AGD, and which rem ains relevant in the course of the proceedings, shall be provided to the holder of parental responsibility. Assistance by a lawyer. 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 Pa rt I of Book Second. Nothing in this Title, in particular in this artic le, 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 th e circumstances of the case, ta king into account the seriousness of the alleged criminal offence, the co mplexity CRIMINAL CODE [CAP. 9. 335 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 f rom insofar as this complies with the right to a fair trial, it bei ng understood that the child’s best interests shall always be a primary consi deration: Provided further that the derogation in the preceding proviso shall not apply and children shall always be assisted b y 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 s cope of this Title; and (b) during detention: Provided further that deprivation of liberty shall not be imposed as a criminal s entence, unless the child has been assis ted by a lawyer in such a way as to allow the child to exercise the righ t of defence effectively and, in any event, during the trial hearing s 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 o r 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 nomin ated a lawyer, to arrange a la wyer for the child. (4) In exceptional circumstances, and only at the pre-trial stag e, a temporary derogation from the application of the rights provi ded for in article 355AUA(2), to the extent justified in the light of t he particular circumstances of the case, may be applied on the bas is of one of the following compelling reasons: (a) where there is an urgent need to avert serious adverse consequences for the lif e, liberty or physical integrit y 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 expressi on "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 inter ests shall be taken into account, and a decision to proceed with que stioning in the absence of a lawyer under sub-article (4) shall be taken on a 336 CAP . 9.] CRIMINAL CODE strictly case-by-case basis either by the Police or by any othe r 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 refe rred to in article 534AGE before the Court of Appeal (Inferior Jurisdictio n) within twelve (12) days from such a decision. Right to individual assessment. 534AGG . (1) In the application of the provisions of this Title, the specific needs of children concerning protection, education , training and social integration shall be taken into account. (2) For the purposes of sub-article (1), children who are suspects or accused persons in criminal proceedings shall be individually assessed. The indivi dual assessment shall, in part icular, take into account the child's personality and maturity, the chi ld's economic, social and family background, and any specific vulnerabilities that the child may have: Provided that the extent and detail of the individual assessment may vary depending on the circumstances of the case, the measures that can be taken if the child is found guilty of the alleged criminal offence, and whether the child has, in the recent past , been the subject of an indi vidual assessment. (3) The individual assessment shall serve to establish and to note, in accordance with the recording procedure permitted by l aw, such information about the individual characteristics and circumstances of the child as mi ght be of use to the Court when : (a) determining whether any specific measure to the benefit of the ch ild is to be taken; (b) assessing the appropriateness and effectiveness of any precautionary measures in respect of the child; (c) taking any decision or course of action in the criminal proceedings, including when sentencing. (4) The individual asse ssment shall be carri ed out at the earlie st appropriate stage of the proceedings and, subject to sub-articl e (5), before the child is charged with a criminal offence. (5) In the absence of an individual assessment, a child may nevertheless be charged with a c riminal offence provided that t his is in the child's best interests and that the individual assessment i s in any event available at the beginning of the trial hearings before a court. (6) Individual assessments shall be carried out with the close involvement of the child. They shall be carried out by qualifie d personnel, following, as far as possible, a multidisciplinary a pproach CRIMINAL CODE [CAP. 9. 337 and involving, where appropriate , the holder of parental respon sibility, or another appropriate adult as r eferred to in articles 534AGE and 534AGN, and, or a specialised professional. (7) If the elements that form the basis of the individual assessment change significantly in the course of the criminal proceedings, the Court shall or der that the individual assessme nt is updated throughout the criminal proceedings. (8) The Executive Police or other law enforcement or judicial authority, as the case may be, following consultation with the Director of the Department for Social Wel fare Standards, may derogate fr om the obligation to carry out an individual assessment on a case by case basis where such a derogation is w arranted in the circumstances of the case, provided that it is compa tible with the ch ild's best inte rests. Right to a medical examination. 534AGH. (1) Children who are deprived of liberty shall have the right to a medical examina tion without undue delay with a v iew, in particular, to assessing their general mental and physical cond ition. The medical examination shall be as non-invasive as possible an d shall be carried out by a physician or another qualified healthcare professional. (2) The results of the medical examination shall be taken into account when determining the capacity of the child to be subjec t to questioning, other investigative or evidence-gathering acts, or any measures taken or envisaged against the child. (3) The medical examination shall be carried out either on the initiative of the Court, in part icular where specific health in dications call for such an examination, o r on a request by any of the fol lowing: (a) the child; (b) the holder of parental responsibility or another appropriate adult as referred to in articles 534AGE and 534AGN; (c) the child's lawyer. (4) The conclusion of the medical examination shall be recorded in writing and, where r equired, medical assistance sha ll be provided: Provided that another medical examination shall be carried out where the circums tances so require. Audiovisual recording of interrogation. 534AGI. (1) Questioning of children by the Executive Police or other law enforcement or judicial authorities during criminal proceedings shall be audio-visually recorded where this is proportionate in the circumstances of the case, taking into acc ount, 338 CAP . 9.] CRIMINAL CODE inter alia , whether a lawyer is present or not and whether the child is deprived of liberty or not, provided that the child's best inte rests are always a primary consideration. (2) In the absence of audiovisual recording, questioning shall b e recorded in another appropriate manner, such as by written minu tes which are duly verified. (3) Any audiovisual recording or records of questioning of children in any other manner shall be kept confidential and sha ll not be publicly disseminated. (4) This article shall be without prejudice to the possibility t o ask questions for the sole purpose of the identification of the child without audiovisual recording. Deprivation of liberty. 534AGJ. (1) The deprivation of liberty of a child, in particular detention, at any stage of the proceedings shall be imposed onl y as a measure of last resort and shall be limited to the shortest app ropriate period of time, taking due account of the age and individual si tuation of the child, and of the particu lar circumstances of the case. (2) Any detention of a child shall be based on a reasoned decision, which shall be subject to appeal. (3) The decision referred to in s ub-article (2) shall be subject to periodic review by the Court acting ex officio , commencing no later than six (6) months after the decision imposing deprivation of liberty was adopted and every six (6) months thereafter, for as long as the decision remains in force: Provided that, without prejudice to judicial independence, any decisions to be taken pursuant to this sub-article shall be taken without undue delay. Alternative measures. 534AGK. The Executive Police and any other law enforcement or judicial authority, as the case may be, shall, where possible, have recourse to measures alternative to detention. Specific treatment in the case of deprivation of liberty. 534AGL. (1) Children who are detained shall be held separately from adults, unless it is considered to be in the child's best interests not to do so. (2) Children who are kept in police custody shall be held separately from adults, unless: (a) it is considered to be in the child's best interests not to do so; or (b) in exceptional circumstances, it is not possible in practice to do so, provided that children are held together wit h CRIMINAL CODE [CAP. 9. 339 adults in a manner that is compatible with the child's best interests. (3) Without prejudice to sub-article (1), when a detained child reaches the age of eighteen (18), that person may continue to b e held separately from other detained a dults where warranted, taking i nto account the circumstances of the p erson concerned, provided tha t this is compatible with the best intere sts of children who are detai ned with that person. (4) Without prejudice to sub-article (1), and taking into accoun t sub-article (3), children may be detained with young adults, un less this is contrary to the child's best interests. (5) When children are detained, the detention authorities shall take appropriate measures to: (a) ensure and preserve their health and their physical and mental development; (b) ensure their right to education and training, including where the children have physical, sensory or learning disabilities; (c) ensure the effective and regular exercise of their right to family life; (d) ensure access to programmes that foster their development and their reinte gration into society; and (e) ensure respect for their freedom of religion or belief: Provided that the measures take n pursuant to this sub-article shall be proportionate and appr opriate to the duration of the d etention. (6) Paragraphs (a) and (e) of sub-article (5) shall also apply t o situations of deprivation of liberty other than detention. The measures taken shall be proportionate and appropriate to such situations of deprivation of liberty. (7) Paragraphs (b), (c), and (d) of sub-article (5) shall apply to situations of deprivation of liberty other than detention only to the extent that is appropriate and proportionate in the light of th e nature and duration of s uch situations. (8) Children who are deprived of liberty shall be allowed to meet with the holder of parental responsibility as soon as poss ible, where such a meeting is compatible with investigative and opera tional requirements, without prejudice to the nomination or designatio n of another appropriate adult pursuant to article 534AGE or article 340 CAP . 9.] CRIMINAL CODE 534AGN. Timely and diligent treatment of cases. 534AGM. (1) The Police and other law enforcement and judicial authorities shall ensu re that criminal proceedings inv olving children are treated as a matter of urgen cy and with due dilige nce. (2) The Police and other law enforcement and judicial authorities shall ensure that ch ildren are always treated in a manner which protects their dignity and which is appropriate to their age, maturity and level of understandin g, and which takes into accou nt any special needs, including any co mmunication difficulties, that t hey may have. Right of the child to be accompanied by holder of parental responsibility during the proceedings. 534AGN. (1) Children shall have the right to be accompanied by the holder of parental responsibility during court hearings in which they are involved. (2) A child shall have the right to be accompanied by another appropriate adult who is nomin ated by the child and accepted as such by the Court where the presence of the holder of parental responsibility accompanying the c hild during court hearings: (a) would be contrary to th e child's best interests; (b) is not possible because, after reasonable efforts have been made, no holder of p arental responsibility can be reached or his or her identity is unknown; or (c) would, on the basis of objective and factual circumstances, substantially jeopardise the criminal proceedings: P r o v i d e d t h a t w h e r e t h e c h i l d h a s n o t n o m i n a t e d a n o t h e r appropriate adult, or where the adult that has been nominated b y the child is not acceptable to the Court, the Court shall, taking i nto account the child's best interests, des ignate another person to accompa ny the child. That person may also be the representative of an authori ty or of another institution responsible for the protection or welfare o f children. (3) Where the circumstances which led to an application of paragraphs (a), (b) or (c) of sub-article (2) cease to exist, t he child shall have the right to be accomp anied by the holder of parenta l responsibility during any re maining court hearings. (4) In addition to the right provided for under sub-article (1), children shall have the right to be accompanied by the holder o f parental responsibility, or by another appropriate adult as ref erred to in sub-article (2), during stages of the proceedings other than co urt hearings at which the child is present where the competent law enforcement or judicial authority considers that: CRIMINAL CODE [CAP. 9. 341 (a) it is in the child's best interests to be accompanied by that person; and (b) the presence of that person will not prejudice the criminal proceedings. Right of children to appear in person at, and participate in, their trial. 534AGO. (1) Children shall have the right to be present at their trial and to participate effectiv ely in the trial, including th e opportunity to be heard and to e xpress their views. (2) Children who were not present at their trial shall have the right to a new trial or to anot her legal remedy, in accordance with, and under the conditions set out in Sub-title XII of Part I of Book Second. European arrest warrant proceedings. 534AGP. The rights referred to in articles 534AGD, 534AGE, 534AGF and 534AGH, articles 534 AGJ to 534AGN and article 570 shall apply mutatis mutandis , in respect of children who are requested persons, upon their arrest pursuant to European arrest warrant proceedings in the executing Member State. Training. 534AGQ. (1) The Minister responsib le for home affairs shall ensure that staff of law enforcem ent authorities and of detenti on facilities who handle cases involving children, receive specifi c training to a level appropriate to their contact with children with regard to children's rights, appropriate questioning techniques , child psychology, and communication in a language adapted to th e child. (2) Without prejudice to the independence of the judiciary, the Minister responsible for jus tice shall take appropriate mea sures to ensure that judges and prosecutors who deal with criminal proceedings involving children ha ve specific competence in that field, effective access to s pecific training, or both. (3) The Minister responsible for justice shall take appropriate measures to promote the provision of specific training as refer red to in sub-article (2) to lawyers who deal with criminal proceed ings involving children. PART II OF MATTERS RELATING TO CERTAIN MODES OF PROCEDURE AND TO CERTAIN TRIALS Title I OF REPORTS, INFORMATIONS AND COMPLAINTS Information. Report. Amended by: IX.1911.17.