Arrested or questioned by police in Malta: your rights
Being called to a police station, arrested or charged in Malta is frightening, especially for someone who does not speak Maltese or does not know the system. The Criminal Code (Cap. 9) gives suspects and accused persons a set of procedural rights, most of them transposing EU directives on access to a lawyer, information, interpretation and the presumption of innocence. They apply from the moment the police make you aware that you are suspected of an offence, whether or not you are under arrest.
The most important rights are: to be told what you are suspected of; to receive a Letter of Rights; to consult a lawyer before questioning and have the lawyer present; to remain silent without that being used against you; to an interpreter and translation of essential documents; to have a relative or employer informed and, for foreigners, to contact your consulate; and to be brought before a court or released within forty-eight hours of arrest.
This guide follows the process from the first contact with the police to the first court sitting and bail, and explains what to do if your rights are breached.
Key facts
Deadline
If you attend the police station voluntarily you are free to leave until told you are under arrest (article 355AD(1) of Cap. 9); a Magistrate must be informed of an arrest unless you are released within six hours (article 355AJ(1)); a person not brought before a court within forty-eight hours of arrest must be released (article 355AJ(3)), save for a Magistrate's warrant of further detention of up to another forty-eight hours for crimes punishable by more than twelve years (article 355AJ(4)–(8)); you and your lawyer must be informed of the alleged offence at least one hour before questioning starts (article 355AUA(8)(a)).
What to do
Find out whether you are under arrest. If you go to a police station voluntarily, or accompany an officer there, you are free to leave at any time unless and until you are told that you are under arrest (article 355AD(1) of the Criminal Code). Ask clearly: am I under arrest, and for what offence? An inspector who has a reasonable suspicion that you committed an offence punishable by imprisonment may arrest you on the spot; the time of arrest is recorded and a Magistrate is notified (article 355AD(2)).
Once you are a suspect, the procedural safeguards apply from the moment the police make you aware of the suspicion, whether or not you are deprived of liberty (articles 355AU(1) and 534A). Stay calm, do not resist, and do not discuss the facts with officers informally.
Ask for and read the Letter of Rights. The police must inform you without undue delay of your procedural rights: access to a lawyer, any entitlement to free legal advice, information about the offence, interpretation and translation, the right to remain silent, the right to have a third party informed, to communicate with consular authorities and to see a doctor (article 534AB(1) of Cap. 9). The information must be given in simple and accessible language (article 534AB(2)).
If you are arrested you should receive this in writing as a Letter of Rights. If you cannot read, you are entitled to have it read out and explained. Keep it; it records what you were told and when, which matters if your rights are later breached.
Request a lawyer before any questioning. You have the right of access to a lawyer without undue delay and, at the latest, before police questioning, before investigative acts such as identity parades or reconstructions, and without undue delay after deprivation of liberty (article 355AUA(2)). Your request is recorded in the custody record with the time (article 355AUA(3)). You may choose a lawyer from the list supplied by the Chamber of Advocates and the Chamber of Legal Procurators, or ask the Advocate for Legal Aid to assign one (article 355AUA(4)).
No police officer may suggest which lawyer you should engage; doing so is an offence (article 355AUA(5)). If you decide not to have a lawyer, this is recorded in writing in front of two witnesses and questioning may start immediately (article 355AUA(6)).
Prepare with your lawyer before the interview. You and your lawyer must be told of the alleged offence at least one hour before questioning starts (article 355AUA(8)(a)). You have the right to meet your lawyer in private and communicate confidentially, including before questioning (article 355AUA(8)(b)), and to have the lawyer present and participating effectively during the interview (article 355AUA(8)(c)).
Use this time to understand the allegation and decide whether to answer questions, give a prepared statement or remain silent. If the police want you to take part in an identity parade, a confrontation or a reconstruction of the crime scene, your lawyer may attend. Legal aid covers these situations for persons deprived of liberty (article 355AU(4)).
Decide whether to remain silent. Suspects and accused persons have the right to remain silent in relation to the offence and the right not to incriminate themselves (article 366E(1) of Cap. 9). Exercising these rights cannot be used against you or treated as evidence that you committed the offence (article 366E(3)). The Code also provides that no inference of guilt may be drawn from your failure to mention, during questioning, facts you later rely on in your defence (article 355AUA(7)).
Silence does not stop the police from obtaining evidence by lawful compulsion, such as samples or documents under a warrant (article 366E(2)). Whether to answer is a tactical decision best taken with your lawyer; lying is always worse than saying nothing.
Insist on an interpreter and translations. If you do not speak or understand the language of the proceedings, you must be provided with interpretation without unreasonable delay, including during police questioning and for communications with your lawyer connected with questioning or hearings (article 534AC(1)–(2) of Cap. 9). The same applies to persons with hearing or speech impediments (article 534AC(3)).
You are also entitled, within a reasonable time, to a written translation of the documents essential to your defence (article 534AD(1)), such as the charge and the decision on detention. Do not sign a statement you have not understood; ask for it to be translated or read back to you through the interpreter.
Have someone informed and contact your consulate. When deprived of liberty, you must be told without undue delay that you have the right to have at least one person, such as a relative or employer, informed of your detention (article 355AUC(1)). You also have the right to communicate with third persons and, if you are not a Maltese citizen, with your consular authorities (article 355AT(3)).
Tell the custody officer whom to call and give the number. The police can delay this only in limited cases, for example if the person is suspected of involvement in the offence. Ask to see a doctor if you are injured, ill or need medication; this is one of the rights listed in the Letter of Rights (article 534AB(1)(h)).
Know the forty-eight-hour limit. Unless you are released within six hours, the arresting officer must inform a Magistrate of the arrest and where you are held (article 355AJ(1)). A person arrested and not brought before a court within forty-eight hours must be released (article 355AJ(3)). Only for crimes punishable by more than twelve years' imprisonment may an inspector ask a Magistrate for a warrant of further detention, for up to another forty-eight hours, if this is necessary to obtain or preserve evidence (article 355AJ(4)–(8)).
If you are released without charge, you cannot be re-arrested for the same offence without a Magistrate's warrant, unless new evidence has been found (article 355AJ(9)). If you are charged, you are brought before the Court of Magistrates.
Apply for bail at the first sitting. A person charged and in custody may apply to be granted temporary release from custody, giving sufficient security to appear at the proceedings and accepting conditions set by the court in the decree granting bail (article 574(1) of Cap. 9). Common conditions are a deposit or personal guarantee, a curfew, signing at a police station, surrender of passport and a ban on contacting witnesses.
For crimes against the safety of the Government or crimes punishable by life imprisonment, the court grants bail only if satisfied that there is no danger that you will fail to appear, abscond, leave Malta, commit offences or interfere with witnesses (article 575(1)). Ties to Malta, a fixed address and employment help. Breaching bail conditions leads to re-arrest and loss of the deposit.
Seek redress if your rights were breached. If the police denied you a lawyer, an interpreter or information, you may seek redress before the criminal court hearing your case or before a Magistrate (article 355AUI(1)). The claim must be filed promptly, and the court may grant the redress it considers appropriate, which in practice may concern the use of a statement taken in breach of your rights. There is an appeal to the Court of Criminal Appeal.
Raise the breach through your lawyer at the earliest opportunity, ideally at the first sitting, and refer to the custody record, the Letter of Rights and the time of your request for a lawyer. Complaints about police conduct can also be made to the Commissioner of Police.
What to watch out for
- Talking to officers informally before your lawyer arrives. Anything you say may be noted; ask for a lawyer first and have the request recorded (article 355AUA(3) of Cap. 9).
- Waiving the right to a lawyer to get it over with. The waiver is recorded before two witnesses and questioning starts at once (article 355AUA(6)); it is very hard to undo later.
- Signing a statement you did not fully understand. You are entitled to an interpreter and translation of essential documents (articles 534AC–534AD); do not sign until it has been explained.
- Believing that silence will be used against you. Under articles 366E(3) and 355AUA(7) it cannot be treated as evidence of guilt; but lying in an interview can seriously damage your defence.
- Accepting a lawyer suggested by a police officer. Officers may not indicate which lawyer to engage (article 355AUA(5)); choose from the official list or ask for the Advocate for Legal Aid.
- Breaching bail conditions. A missed signing or contact with a witness can lead to re-arrest and forfeiture of the security.
- Waiting to complain about a breach of rights. A claim for redress must be filed promptly (article 355AUI(1)); raise it through your lawyer at the first sitting.
Legal basis
Frequently asked questions
How long can the police hold me in Malta without charge?
A person arrested and not brought before a court within forty-eight hours must be released (article 355AJ(3) of the Criminal Code). For crimes punishable by more than twelve years' imprisonment, a Magistrate may issue a warrant of further detention for up to another forty-eight hours if needed to obtain or preserve evidence (article 355AJ(4)–(8)). A Magistrate must be informed of any arrest lasting over six hours.
Do I have the right to a lawyer during police questioning in Malta?
Yes. You may consult a lawyer before questioning and have the lawyer present and participating during the interview (article 355AUA(2) and (8) of the Criminal Code). You and your lawyer must be told about the alleged offence at least one hour before questioning starts. You may choose from the official list or ask the Advocate for Legal Aid to assign a lawyer.
Can I get a free lawyer if I am arrested in Malta?
Yes, legal aid is available to suspects deprived of liberty and to those required to attend identity parades, confrontations or reconstructions (article 355AU(4) of the Criminal Code). When you ask for a lawyer, you can elect to be assisted by the Advocate for Legal Aid, who assigns one (article 355AUA(4)). The Letter of Rights explains the conditions.
Do I have to answer police questions in Malta?
No. You have the right to remain silent and not to incriminate yourself (article 366E(1) of the Criminal Code), and using that right cannot be treated as evidence of guilt (article 366E(3)). No inference of guilt may be drawn from not mentioning facts during questioning (article 355AUA(7)). Discuss with your lawyer whether answering would help.
What is the Letter of Rights in Malta?
It is the written notice the police must give you, without undue delay, listing your procedural rights: a lawyer, free legal advice, information about the offence, interpretation and translation, silence, informing a third party, consular contact and access to a doctor (article 534AB(1) of the Criminal Code). If you cannot read, it must be read out and explained.
I do not speak English or Maltese. What are my rights?
You are entitled to interpretation without unreasonable delay, including during police questioning and for talks with your lawyer connected to questioning or hearings (article 534AC of the Criminal Code). You also have a right to written translations of essential documents, such as the charge (article 534AD). Do not sign anything you have not understood.
Can I leave the police station if I went there voluntarily?
Yes. A person who attends voluntarily, or accompanies an officer to a police station, is free to leave at any time unless and until informed that they are under arrest (article 355AD(1) of the Criminal Code). If an inspector arrests you, the time is recorded and a Magistrate is notified (article 355AD(2)).
Will my family or embassy be told that I have been arrested?
You have the right to have at least one person, such as a relative or employer, informed of your detention without undue delay (article 355AUC(1) of the Criminal Code), and to communicate with third persons and your consular authorities while detained (article 355AT(3)). Tell the custody officer whom to contact.
How does bail work in Malta?
At the first sitting your lawyer can ask the Court of Magistrates for temporary release from custody against sufficient security and conditions set in the bail decree (article 574(1) of the Criminal Code). For very serious crimes, such as those punishable by life imprisonment, bail is granted only if the court is satisfied there is no risk of absconding, reoffending or interference (article 575(1)).
What can I do if the police denied me a lawyer?
You can seek redress before the criminal court hearing your case or before a Magistrate, promptly (article 355AUI(1) of the Criminal Code). The court may grant appropriate redress, and its decision can be appealed to the Court of Criminal Appeal.
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