https://defensewiki.ibj.org/api.php?action=feedcontributions&feedformat=atom&user=IBJadminCriminal Defense Wiki - User contributions [en]2026-04-21T10:57:57ZUser contributionsMediaWiki 1.42.1https://defensewiki.ibj.org/index.php?title=Estonia&diff=381688Estonia2025-08-27T13:14:03Z<p>IBJadmin: 1st iteration of Estonia - written by Kylan, uploaded by Kevin</p>
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{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
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|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;"> Legal Resources for Estonia </h2><br />
• Constitution of the Republic of Estonia <ref>https://www.riigiteataja.ee/en/eli/530102013003/consolide</ref><br />
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<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources </h2> <br />
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• [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
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<br />
==Introduction==<br />
===Context/Background===<br />
Estonia gained independence from the Soviet Union in 1991 but Russian troops did not leave the country until August of 1994. Throughout the next decade, Estonia would develop a stronger democratic governing body, joining international organizations such as the World Trade Organization and later improving relations with Russia. The central legislative body of Estonia is known as the Riigikogu which consists of elected officials responsible for enacting the laws for the country.<br />
<br />
===Type of system===<br />
Estonia’s legal system is based on civil law.<br />
<br />
===Legal aid situation===<br />
====State sponsored legal aid====<br />
According to the State Sponsored Legal Aid Act, Estonia provides state sponsored legal aid to its citizens and other members of the European Union if, due to financial reasons, they cannot afford competent legal services.<br />
<br />
====Number of lawyers (criminal/civil) if known====<br />
The official number of lawyers in Estonia is available on the [https://advokatuur.ee/en/find-advocates/law-offices Estonian Bar Association] website.<br />
<br />
==Sources of Defendants’ rights==<br />
===National sources of Defendants’ rights===<br />
The Constitution of the Republic of Estonia, the Penal Code, the Code of Criminal Procedure and the Imprisonment Act are national sources of defendant’s rights.<br />
<br />
===International Sources of Defendants rights===<br />
International treaties that ensure the defendant's rights in Estonia are the European Convention on Human Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).<br />
<br />
==Rights of the Accused==<br />
According to section thirty-five of the Code of Criminal Procedure, the accused has the same rights and obligations of a suspect as listed below.<br />
<br />
===Right Against Unlawful Arrests, Searches and Seizures===<br />
According to section thirty-four of the Code of Criminal Procedure, a suspect has the right and obligation to participate in the hearing of an application for an arrest warrant in court.<br />
According to chapter two, section thirty-two of the Constitution, the property of every person is inviolable and equally protected but it may be taken from the owner without consent only in public interest, in the cases and pursuant to a procedure provided by law, and for fair and immediate compensation. Everyone whose property has been taken without their consent has the right to bring an action in the courts to contest the taking of the property, the compensation, or the amount of the compensation.<br />
Additionally, section thirty-three specifies no one’s dwelling or other premises lawfully occupied by him or her, or his or her workplace may be forcibly entered or searched, except in the cases and pursuant to a procedure provided by law to protect public order, public health or the rights and freedoms of others, to prevent a criminal offence, to apprehend the offender, or to ascertain the truth in a criminal case.<br />
<br />
===Right Against Unlawful Detention===<br />
According to chapter two, section twenty-one of the constitution, no one may be held in custody for more than forty-eight hours without a specific authorisation of a court. The decision of the court must be promptly communicated to the person in custody in a language and manner that he or she understands.<br />
<br />
===Right Not to be Tortured or Ill-Treated===<br />
According to chapter two, section 18 of the constitution, no one may be subjected to torture or to cruel or degrading treatment or punishment.<br />
<br />
===Right to Medical Care===<br />
While there is no explicit right to medical care for the accused there are considerations given to the overall state of health of the accused as seen in the section on interrogation.<br />
<br />
===Right to be Informed of Charges===<br />
According to chapter two, section twenty-one of the constitution, everyone who has been deprived of his or her liberty must be informed promptly in a language and manner which he or she understands, of the reason for the deprivation of liberty and of his or her rights, and be given an opportunity to notify those closest to him or her.<br />
<br />
===Right to Presumption of Innocence===<br />
According to chapter two, section twenty-two of the constitution, no one may be deemed guilty of a criminal offence before he or she has been convicted in a court and before the conviction has become final<br />
<br />
===Right Against Self-Incrimination===<br />
According to section thirty-four of the Code of Criminal Procedure a suspect has the right to know that their testimony may be used in order to bring charges against him or her.<br />
<br />
===Right to Counsel and Effective Assistance===<br />
According to chapter two, section twenty-one of the constitution, a person suspected of a criminal offence must also be promptly given an opportunity to choose a counsel and to confer with him or her.<br />
<br />
===Right to a Present a Defense===<br />
According to chapter one, section eight of the Code of Criminal Procedures, the Prosecutors’ Offices and court shall provide the suspect and the accused with a real opportunity to defend themselves.<br />
<br />
===Right to Due Process===<br />
According to chapter one, section eight of the Code of Criminal Procedures the Prosecutors’ Offices and courts shall in the performance of a procedural act in the cases provided by law, explain to the participants in the proceeding the objective of the act and the rights and obligations of the participants.<br />
<br />
===Right to Equal Protection of the Laws===<br />
According to chapter two, section nine of the constitution, the rights, freedoms and duties of all persons and of everyone, as set out in the Constitution, apply equally to citizens of Estonia and to citizens of foreign states and stateless persons in Estonia<br />
<br />
===Right to Bail===<br />
According to section 135 of the Code of Criminal Procedure, at the request of a suspect or accused, a preliminary investigation judge or court may impose bail instead of taking into custody.<br />
<br />
===Right Against Ex Post Facto Prosecution===<br />
According to chapter one, section two, no one shall be convicted or punished for an act which was not an offence pursuant to the law applicable at the time of the commission of the act<br />
<br />
===Right Against Double Jeopardy===<br />
According to chapter two, section twenty-three of the constitution, no one may be prosecuted or sentenced for a second time for an act in respect of which he or she has been the subject of a final conviction or acquittal pursuant to the law.<br />
<br />
===Right to a Fair Trial===<br />
====Right to a Trial by Jury====<br />
There are no explicit mentions of a jury in the available legal documents but there are two lay judges at the county level who assist the judge on a volunteer basis which may be viewed as serving a similar role as a jury.<br />
<br />
====Right to a Speedy Trial====<br />
According to chapter two, section 22 of the Constitution, no one may be held for more than 48 hours without a specific authorization of a court. The decision of the court must be promptly communicated to the person in custody in a language and manner which he or she understands.<br />
<br />
====Right to an Impartial Judge====<br />
According to section forty-eight of the Code of Criminal Procedure, if a judge finds that he or she cannot be impartial for a reason not specified in the Code, the judge shall submit a petition of challenge<br />
<br />
===Right to Language Interpretation===<br />
According to chapter one, section nine of the Code of Criminal Procedures, a person taken into custody shall be immediately notified of the court’s decision on taking into custody in a language and manner which he or she understands. Additionally, section ten guarantees that with the consent of the body conducting criminal proceedings, participants in the proceeding and parties to the court proceeding, the criminal proceedings may be conducted in another language if the body, participants and parties are proficient in such language.<br />
<br />
===Capital Punishment===<br />
According to Protocol No.6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty, Estonia as a signatory has abolished capital punishment meaning no one shall be condemned to such penalty or executed. Additionally, section 440 of the Code of Criminal procedures states that if death penalty may be imposed in a requesting state as punishment for a criminal offence and is the basis for the request for extradition, the person may be extradited only on the condition that the competent authority of the requesting state has assured that death penalty will not be imposed on the person to be extradited or, if death penalty was imposed before the submission of the request for extradition, the penalty will not be carried out.<br />
<br />
===Right to Appeal===<br />
According to chapter two, section twenty-four of the constitution, in accordance with the procedure provided by law, everyone is entitled to appeal a judgement rendered in his or her case to a higher court<br />
<br />
==Rights of Counsel==<br />
===Right to Provide Representation===<br />
According to chapter one, section 8 of the Code of Criminal Procedures, the Prosecutors; Offices and courts shall ensure the assistance of a counsel to the suspect and the accused or if such assistance is requested by the suspect or the accused. Additionally, in the cases of urgency, the offices and courts shall provide a suspect or accused held in custody with other legal assistance at his or her request<br />
<br />
===Right of Access to the Client===<br />
According to chapter one, section forty-seven of the Code of Criminal Procedures, a counsel has the right to confer with the person being defended without the presence of other persons for an unlimited number of times with unlimited duration unless a different duration of the conference is provided for in this Code.<br />
<br />
===Right to Information===<br />
According to chapter one, section forty-seven of the Code of Criminal Procedures, a counsel has the right to receive from natural and legal personas documents necessary for the provision of legal assistance to the person being defended and examine the minutes of procedural acts and give statements on the conditions, course, results and minutes of the procedural acts, whereas such statements are recorded in the minutes.<br />
<br />
===Right to Confidential Communication with the Client===<br />
According to chapter one, section thirty-four of the Code of Criminal Procedures a suspect has the right to confer with the counsel without the presence of other persons. The accused has the same rights and obligations of a suspect.<br />
<br />
==Means of Protecting or Enforcing Rights==<br />
===Contempt===<br />
According to section 267 of the Code of Criminal Procedure, if a prosecutor, representative or counsel violates order in a court session, fails to comply with the order of a judge or acts in contempt of the court, a fine may be imposed on him or her based on a court ruling. Additionally, if any other participant in a proceeding or a person present in a courtroom violates order in a court session, fails to comply with the orders of the judge or acts in contempt of court, he or she may be removed from the courtroom, or a fine or detention for up to five days may be imposed on him or her on the basis of a court ruling.<br />
<br />
===Civil Actions===<br />
According to section thirty-eight of the Code of Criminal Procedure, a victim has the right to file a civil action through an investigative body or the Prosecutor’s Office. Section forty also states that civil defendants have the right to contest a civil action or file a counterclaim.<br />
<br />
==Pre trial Procedures==<br />
===Police procedures===<br />
====Complaint/information====<br />
According to chapter 8 section 195, a report of a criminal offense shall be<br />
submitted to an investigative body or a Prosecutor’s Office orally or in writing.<br />
<br />
====Arrest, Search and Seizure laws====<br />
=====Pre-trial detention=====<br />
According to chapter two, section 22 of the Constitution, no one may be held for more than 48 hours without a specific authorization of a court. The decision of the court must be promptly communicated to the person in custody in a language and manner which he or she understands<br />
<br />
=====Searches=====<br />
According to chapter two section thirty-two of the Constitution, the property of every person is inviolable and equally protected. Property may be taken from the owner without his or her consent only in the public interest, in the cases and pursuant to a procedure provided by law, and for fair and immediate compensation. Everyone who has their property taken without their consent has the right to bring an action in the courts to contest the taking of the property, the compensation, or the amount of the compensation.<br />
<br />
=====Seizures=====<br />
According to section 142 of the Code of Criminal Procedure, the objective of seizure of property is to secure a civil action, confiscation or replacement thereof or fine to the extent of assets. The section specifies that seizure of property means recording the property of a suspect, accused, convicted offender, civil defendant or third party or the property which is the object of money laundering or terrorist financing and preventing the transfer of the property.<br />
<br />
====Interrogation====<br />
According to section 34 of the Code of Criminal Procedure, a suspect has the right and obligation to be interrogated and participate in confrontation, comparison of testimony to circumstances and presentation for identification in the presence of a counsel.<br />
<br />
=====Before and after formal charge=====<br />
According to section seventy-five of the Code of Criminal Procedure, at the beginning of interrogation, it shall be explained to the suspect that he or she has the right to refuse to give statements and that the statements given may be used against him or her. Additionally, the suspect and his or her counsel have the right to get a copy of the record of interrogation of the suspect during the interrogation of the suspect during the interrogation to the extent that a copy includes basic personal identification information, the marital status of the suspect, and the facts relating to the criminal offence of which the person is suspected and the legal assessment of the criminal offence pursuant to the relevant section, subsection and clause of the Penal Code.<br />
<br />
=====Enforcing the rules (procedures to protect against illegal interrogation)=====<br />
According to section thirty-three of the Code of Criminal Procedure, interrogation may be postponed if immediate interrogation is impossible due to the state of health of the suspect, or if postponing is necessary in order to ensure the participation of a counsel and the interpreter or translator.<br />
<br />
==Court Procedures==<br />
===Pre-Trial===<br />
According to section 34 of the Code of Criminal Procedure, a suspect has the right to know the content of the suspicion and give or refuse testimony with regard to the content of the suspicion. Additionally, they have the right to know that their testimony may be used in order to bring charges against him or her.<br />
According to section eighteen of the Code of Criminal Procedure, pre-trial proceedings shall be conducted by a judge sitting alone.<br />
<br />
===Trial===<br />
====Defendant====<br />
According to section forty of the Code of Criminal Procedure, a civil defendant has the right to:<br />
<br />
Contest a civil action or file a counterclaim<br />
<br />
submit evidence<br />
<br />
Submit requests and complaints<br />
<br />
Examine the minutes of procedural acts and give statements on the conditions, course, results and minutes of the procedural acts, whereas such statements are recorded in the minutes<br />
<br />
Examine the materials of the criminal file<br />
<br />
Participate in the court hearing<br />
<br />
Give consent to the application of settlement proceedings or to refuse to give such consent, to present an opinion concerning the damage set out in the charges and the civil action<br />
<br />
====Lawyers====<br />
While the Code of Criminal Procedure makes no explicit references to lawyers, section eight does specify that the investigative bodies, Prosecutors’ Offices and courts shall ensure the assistance of a counsel to the suspect and the accused.<br />
<br />
====Expert Witnesses====<br />
According to section sixty-three of the Code of Criminal Procedure, evidence for criminal procedures means the statements of a suspect, accused, victim, the testimony of a witness, an expert’s report, the statements given by an expert upon provision of explanations concerning the expert’s report, physical evidence, reports on investigative activities, minutes of court sessions and reports on surveillance activities and other documents, photographs, films, or other data recordings.<br />
<br />
====Judges====<br />
According to section 18 of the Code of Criminal Procedure, in county courts, criminal matters concerning criminal offences in the first degree shall be heard by a court panel consisting of the presiding judge and two lay judges with lay judges having all the rights of a judge in a court hearing. Additionally, matters concerning criminal offences in the second degree and criminal matters in which simplified proceedings are applied shall be heard by a judge sitting alone.<br />
<br />
====Victims====<br />
According to section thirty-eight of the Code of Criminal Procedure, a victim has the right to:<br />
<br />
Contest a refusal to commence or termination of criminal proceedings<br />
<br />
File a civil action through an investigative body or the prosecutor’s office not later than by the date provided for in subsection 225 of the Code of Criminal Procedures<br />
<br />
Give or refuse to give testimony<br />
<br />
Submit evidence<br />
<br />
Submit requests and complaints<br />
<br />
Examine the minutes of procedural acts and give statements on the conditions, course, results and minutes of the procedural acts, whereas such statements are recorded in the minutes<br />
<br />
Examine the materials of the criminal file<br />
<br />
Participate in the court hearing<br />
<br />
Give consent to the application of settlement proceedings or to refuse to give such consent, to present an opinion concerning the charges and punishment and the damage set out in the charges and the civil action<br />
<br />
Give consent to the application of temporary restraining order and request application of restraining order<br />
<br />
===Sentencing===<br />
According to section 171 of the Code of Criminal Procedure, if a person is sentenced to imprisonment, the time-limit shall be calculated as of the moment of his or her arrival at the prison for serving the punishment unless the time of commencement of the service of the sentence arises from a court judgement. According to section 414 of the Code of Criminal Procedure, if a convicted offender was not held in custody during the court proceedings, the county court enforcing the decision shall send a notice prepared according to the treatment plan to the convicted offender, setting out by which time and to which prison the convicted offender must appear for the service of the sentence.<br />
<br />
===Appeals===<br />
According to section 228 of the Code of Criminal Procedure, before a statement of charges is prepared, participants in a proceeding or a person not subject to the proceedings has the right to file an appeal with the Prosecutor’s Office against a procedural act or order of the investigative body if he or she finds that violation of the procedural requirements in the performance of the procedural act or preparation of the order has resulted in the violation of his or her rights.<br />
<br />
====Right to counsel====<br />
According to section 34 of the Code of Criminal Procedure, a suspect has the right to the assistance of a counsel and to confer with the counsel without the presence of other persons.<br />
<br />
====Ineffective assistance of counsel====<br />
While there is no explicit law on appealing on the basis of ineffective counsel, section eight of the Code of Criminal Procedure does state that in the cases of urgency, investigative bodies, Prosecutors’ Offices and courts shall provide a suspect or accused held in custody with other legal assistance at his or her request.<br />
<br />
====Other Grounds for Appeal====<br />
According to section ten of the Code of Criminal Procedure a suspect or accused or his or her counsel may file an appeal against the ruling on the basis of the language of Estonian not being the defendant’s native language or a language which he or she understands comprehensively.<br />
<br />
==Rights in Prison==<br />
===Right to Humane Conditions of Confinement===<br />
According to section forty-five of the Imprisonment Act, the cell of a prisoner shall meet the general requirements established for dwellings on the basis of the Building Code which ensure the air flow and circulation, light and temperature in the cell which is necessary for living. The Act also states that a cell must have a window and artificial lighting which ensures sufficient lighting of the room.<br />
<br />
===Immigrant’s Rights in Detention===<br />
According to chapter two, section 9 of the constitution, the rights, freedoms and duties of all persons and of everyone as set out in the Constitution, apply equally to citizens of Estonia and to citizens of foreign states and stateless persons in Estonia.<br />
<br />
===Right to Medical Care in Prison===<br />
According to section fifty-two of the Imprisonment Act, health care services in prisons are provided by a health care provider in accordance with the provisions of the Health Care Services Organization Act regulating the provision of specialised medical care. Additionally, a health care professional is required to supervise the state of health of a prisoner on a constant basis, treat them in prison to the extent possible and, where necessary, refer them to treatment at a relevant provider of specialized medical care, and perform other functions assigned to them.<br />
<br />
===Right to Mental Health Care===<br />
There are no explicit mentions of a right to mental health care for prisoners from available documents.<br />
<br />
===Restriction of rights===<br />
According to section four of the Imprisonment Act, liberties of prisoners, detained persons or persons in custody shall be subject to the restrictions provided by law. It also states that unless the law provides a specific restriction, a prison, the Ministry of Justice or a house of detention may apply only such restrictions which are necessary for reasons of security of the prison or house of detention. Lastly, any restrictions shall comply with their objective application and the principles of human dignity and may not distort the nature of the other rights and liberties provided by law.<br />
<br />
===Rights of Special Populations===<br />
According to section twelve of the Imprisonment Act, certain populations shall be segregated which include:<br />
Men and women, and<br />
Minor and adults<br />
<br />
Additionally, section seventy-one of the Imprisonment Act, it is prohibited to use firearms against women and minors, except in the case where a woman or minor escapes, uses firearms to initiate resistance against a prison service officer or attacks a prison service officer or other people.<br />
<br />
====Women====<br />
According to section fifty-four of the Imprisonment Act, prisons shall provide separate premises fitted out for women prisoners who are pregnant and organize care for children.<br />
<br />
====Juveniles====<br />
According to section eighty-three of the Imprisonment Act, all specifications for the work of minors arising from labour protection laws, including the specifications for working hours, shall be applied to the work of young prisoners less than 18 years of age.<br />
<br />
==References==<br />
Code of Criminal Procedure. Riigi Teataja. 2003. https://www.riigiteataja.ee/en/eli/530102013093/consolide<br />
<br />
Convention for the Protection of Human Rights and Fundamental Freedoms concerning the <br />
abolition of the death penalty. Council of Europe. 1983. https://rm.coe.int/168007952b<br />
<br />
Estonia Factsheet. Northeastern University School of Law. January 2020. <br />
https://cglj.org/human-rights-law<br />
<br />
Imprisonment Act. Riigi Teataja. 2000. <br />
https://www.riigiteataja.ee/en/eli/ee/Riigikogu/act/516012025003/consolide<br />
<br />
Penal Code. Riigi Teataja. 2001. https://www.riigiteataja.ee/en/eli/522012015002/consolide <br />
<br />
State-funded Legal Aid Act. Riigi Teataja. 2004. <br />
https://www.riigiteataja.ee/en/eli/ee/503052023005/consolide<br />
<br />
The Constitution of the Republic of Estonia. Riigi Teataja. 1992. <br />
https://www.riigiteataja.ee/en/eli/530102013003/consolide</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Criminal_Justice_Systems_Around_the_World&diff=381687Criminal Justice Systems Around the World2025-08-27T13:07:18Z<p>IBJadmin: /* Country Pages */ Added Estonia link</p>
<hr />
<div>Criminal justice systems can be loosely classified as either common, civil, Islamic or socialist law in nature. However, today many jurisdictions have adopted hybrid models that combine elements of various legal systems. Many of these systems share a common set of [[Core Values | core values]]. In addition, most criminal justice systems have adopted a [[Legality Principle | legality principle]]. Almost every criminal justice system is made of of similar [[Actors in the Criminal Justice System | actors]].<br />
<br />
==Country Pages==<br />
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{{Languages|Criminal Justice Systems Around the World}}<br />
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==We need your help==<br />
Can you assist the creation of a country-page? Email elearning@ibj.org.<br />
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See [[Legal Aid Systems and Supporting NGOs around the world]]</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Kuwait&diff=381686Kuwait2025-08-27T12:41:22Z<p>IBJadmin: Added in the footnotes</p>
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<div>{{Languages|English}}<br />
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<div class="box" style="padding: 40px; font-size: 1.5em; font-family: Arial, sans-serif; line-height: 1.5; border: 3px solid yellow; background-color: #FFFF00; text-align: center; margin: 30px;"><br />
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<br />
{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;"> Legal Resources for Kuwait </h2><br />
• Constitution of the State of Kuwait <ref>https://media.gov.kw/assets/img/Ommah22_Awareness/PDF/Follow_the_information_unit/new/consitiution%20-%20English.pdf</ref><br />
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<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources </h2> <br />
<br />
• [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Introduction==<br />
===Background===<br />
Kuwait is an Arabic-speaking state located in the Middle East, bordering the Persian Gulf, Iraq, and Saudi Arabia. Since the 18th century, Kuwait has been ruled by the AL-SABAH dynasty, however Ottoman invasion in 1899 led to the dynasty ceding foreign and defense responsibility to Britain until it gained independence in 1961. Iraq overran Kuwait in 1990, but a UN coalition led by the United States liberated Kuwait. In 1992, the parliament was reconstituted by the Amir. Among the Arab Spring protests (2010-2011) a stateless group known as the Bidoons staged demonstrations demanding equal citizenship, job opportunities, and benefits as Kuwaiti nationals. By the end of the protests, the prime minister resigned amid corruption allegations. In 2012, demonstrations resumed responding to an amendment in electoral law that lessened the voting power of tribal blocs. From 2012-2013, Sunni Islamists, tribal populists, and some liberals boycotted legislative elections, leading to a legislature more amenable to the government’s agenda. Oppositionists and independents won nearly half of the National Assembly seats and drove up political polarization. From 2006 to 2020, the National Assembly was dissolved seven times and the cabinet was shuffled over a dozen, mostly because of gridlock between the legislature and the government. However, the Amir, who assumed his role in 2020, launched a “National Dialogue” to resolve political stagnation. (Factbook) Today, Kuwait is known for being an oil-rich and wealthy desert state that has a high standard of living and well-developed infrastructure with a predominantly Muslim culture, with tradition a part of daily life. 30.4% of the population is Kuwaiti, 27.4% is from another Arab state, 40.3% is Asian, and 1% is African—with a majority of the population located in the Gulf region.<ref>[https://www.cia.gov/the-world-factbook/countries/kuwait/ | Kuwait | The World Factbook]</ref> As of June 2025, Kuwait’s government has been involved in discussing Israel-Iran strikes with the Turkish president and Oman’s sultan amidst heightened tensions over the Palestine-Israel conflict, in which Kuwait has pledged support for Palestine.<ref>[https://www.arabnews.com/node/2604584/middle-east | Turkish President Discusses Israel-Iran Strikes with Oman’s Sultan, Kuwait’s Emir | Arab News]</ref><br />
<br />
===Type of system===<br />
Kuwait’s legal system is hybrid; consisting of English common law, French civil law, and Islamic Sharia law, and Egyptian law.<ref>[https://www.cia.gov/the-world-factbook/countries/kuwait/ | Kuwait | The World Factbook]</ref> Islamic law is present in personal matters (e.g., marriage, divorce, inheritance) but the Kuwaiti Constitution of 1962, which serves as the primary source of legislation, does provide for an independent judiciary.<ref>[https://www.arazzaqlaw.com/legal-system/ | Legal System in Kuwait | Abdul Razzaq Abdullah & Partners]</ref> The state has not accepted the compulsory ICJ jurisdiction. The highest courts include the Constitutional Court, consisting of 5 judges, and the Supreme Court/ Court of Cassation, which is organized into circuits, each with 5 judges. Judges are selected by appointment from the Amir or recommendation of the Supreme Judicial Council (composed of judges and Ministry of Justice officials. Subordinate courts include the High Court of Appeal, Court of First Instance, and Summary Court.<br />
<br />
===Legal aid===<br />
====State-sponsored legal aid====<br />
Kuwait does not have a formal state-sponsored legal aid program.<br />
<br />
====NGOs providing pro bono legal aid====<br />
However, the Kuwait Bar Association is mandated by courts to appoint lawyers in criminal, civil, and commercial cases for indigent defendants.<ref>[https://www.state.gov/wp-content/uploads/2022/03/313615_KUWAIT-2021-HUMAN-RIGHTS-REPORT.pdf | Kuwait 2021 Human Rights Report | United States Department of State, p.6]</ref> Non-governmental organizations that provide pro bono legal aid in Kuwait include Al-Twaijri & Partners,<ref>[https://rightsinexile.org/legal-assistance-by-country/kuwait-legal-assistance/ | Kuwait Legal Assistance | AsyLex]</ref> UNHCR Kuwait,<ref>[https://rightsinexile.org/legal-assistance-by-country/kuwait-legal-assistance/ | Kuwait Legal Assistance | AsyLex]</ref> Al-Arbash International Law Center,<ref>[https://rightsinexile.org/legal-assistance-by-country/kuwait-legal-assistance/ | Kuwait Legal Assistance | AsyLex]</ref> and Kuwait Humanitarian Centre.<ref>[https://www.lw.com/admin/upload/SiteAttachments/pro-bono-in-kuwait.pdf | Pro Bono Practices and Opportunities in Kuwait | Latham & Watkins LLP, p.3]</ref><br />
<br />
====Number of lawyers====<br />
As of 2015, there were 6,000 lawyers serving a population of 4.3 million people in Kuwait.<ref>[https://www.csb.gov.kw/Pages/Statistics_en?ID=64&ParentCatID=1 | Central Statistical Bureau Labour Force Survey 2014 and 2015]</ref> Data on the total number of lawyers (by criminal/ civil) is not publicly available.<br />
<br />
===Sources of defendant’s rights?===<br />
National sources of defendant’s rights<br />
Defendant's rights are guaranteed by the Constitution of Kuwait (1962) which outlines the presumption of innocence, due process, the independent judiciary, and freedom from arbitrary detention.<ref>[http://hrlibrary.umn.edu/research/kuwait-constitution.html | Constitution of Kuwait 1962]</ref> The Ministry of Justice regulations govern prosecution, court procedures, and legal aid appointments.<ref>[https://www.moj.gov.kw/EN/Pages/default.aspx | Ministry of Justice]</ref><br />
<br />
International sources of defendant’s rights<br />
Kuwait is also subject to the International Covenant on Civil and Political Rights (ICCPR), including obligations of, respectively, independence and impartiality of judges, and the independence of prosecutors.<ref>[https://iadllaw.org/2019/07/independence-of-the-judiciary-in-kuwait/ | Independence of the Judiciary in Kuwait | International Association of Democratic Lawyers, Article 2]</ref> Kuwait is also signatory to the Universal Declaration of Human Rights (UDHR),<ref>[https://iadllaw.org/2019/07/independence-of-the-judiciary-in-kuwait/ | Independence of the Judiciary in Kuwait | International Association of Democratic Lawyers, Article 2]</ref> UN Convention Against Torture,<ref>[https://www.ohchr.org/en/press-releases/2024/11/un-committee-against-torture-publishes-findings-cameroon-jordan-kuwait | UN Committee against Torture publishes findings on Cameroon, Jordan, Kuwait, Mongolia, Namibia and Thailand | United Nations]</ref> Convention on the Rights of the Child,<ref>[https://www.hrw.org/news/2020/05/12/submission-committee-rights-child-kuwait#:~:text=According%20to%20article%2026%20of,collects%20this%20data%20at%20all. | Submission to the Committee on the Rights of the Child on Kuwait | Human Rights Watch]</ref> and Convention on the Elimination of Discrimination Against Women,<ref>[https://salam-dhr.org/our-joint-submission-information-on-kuwait-for-consideration-by-the-committee-on-the-elimination-of-discrimination-against-women-cedaw-at-its-88th-session-13-may-2024-31-may-2024/ | Our Joint Submission Information on Kuwait for Consideration by the Committee on the Elimination of Discrimination Against Women (CEDAW) at its 88th Session | Salam for Democracy and Human Rights]</ref> among others.<ref>[https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/countries.aspx?CountryCode=KWT&Lang=EN | UN Treaty Body Database | United Nations]</ref><br />
<br />
==Rights of the accused==<br />
===Right against unlawful arrests, searches, and seizures===<br />
Rule 63 of Kuwait’s CCP states that any arrest order must be written, dated, signed, and include the accused’s name, residence, and justification for arrest.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 63]</ref> The officer must notify the accused and inform them of the content of the warrant upon request.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 63]</ref> The warrant expires after three months if not executed and cannot be reissued without renewal.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 63]</ref> Rule 92 allows seizure only when necessary for investigation or trial, ensuring detentions are not used to justify arbitrary confiscation.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 92]</ref> Rule 94 mandates that legitimate owners can challenge seizures in court, ensuring a legal avenue to reclaim unlawfully held property.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 94]</ref> Rule 95 specifies that non-essential items must be returned, preventing indefinite or unnecessary possession of personal property.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 95]</ref> Rules 93-97 establish procedures for handling, storing, and returning seized property, guaranteeing that evidence is preserved under secure conditions and returned once it is no longer needed.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rules 93-97]</ref><br />
<br />
===Right against unlawful detention===<br />
According to Rule 63, if a warrant isn’t executed within three months, it automatically lapses, safeguarding against outdated legal bases for detention.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 63]</ref> Upon arrest under a warrant, the accused must be presented to the investigator without delay and cannot be held more than 4 days without a written detention order.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 63]</ref> Rule 69 states pre-trial detention can start with up to 3 weeks based on the investigative authority’s decision.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 69]</ref> After that, only a judge can extend detention—and only in 15-day increments.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 69]</ref> If pre-trial detention occurs six months from the date of arrest, a court will hear the case at the request of an investigator and determine renewal of detention depending on the statements of the accused and facts of the case.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 70]</ref> This is a safeguard against indefinite detention without court review, ensuring regular judicial oversight.<br />
<br />
===Right not to be tortured or ill-treated===<br />
Article 34 of the Constitution mandates accused persons not suffer physical or moral harm, guaranteeing a freedom from punishment.<ref>[http://hrlibrary.umn.edu/research/kuwait-constitution.html | Constitution of Kuwait 1962, Article 34 § 2]</ref><br />
<br />
===Right to medical care===<br />
Article 15 of the Constitution establishes a state-funded healthcare system that provides free treatment to Kuwaiti citizens.<ref>[http://hrlibrary.umn.edu/research/kuwait-constitution.html | Constitution of Kuwait 1962, Article 15]</ref> Although the CCP doesn’t guarantee medical care to the accused, the Ministry of the Interior has confirmed that detainees are administered an examination upon entry and those with injuries are provided medical attention.<ref>[https://documents.un.org/doc/undoc/gen/g16/167/11/pdf/g1616711.pdf | Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Third Periodic Report of Kuwait | United Nations]</ref><br />
<br />
===Right to be informed of charges===<br />
In Kuwait’s CCP, the right to notice of charges is protected by Rule 63 which stipulates that anyone arrested must be informed of the charges against them, though the formal warrant may only be shown if the person explicitly requests it.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 63]</ref> Article 31 of the Constitution further ensures no person shall be arrested or detained without conformity to the law, requiring awareness of criminal allegations at the time of arrest.<ref>[http://hrlibrary.umn.edu/research/kuwait-constitution.html | Constitution of Kuwait 1962, Article 31 § 1]</ref> While authorities are required to provide notice of charges, the United States Department of States’ Human Rights report claims “defendants who did not speak or understand Arabic learned of the charges against them only after their trial began” because they didn’t have interpreters.<ref>[https://www.state.gov/reports/2023-country-reports-on-human-rights-practices/kuwait/ | 2023 Country Reports on Human Rights Practices: Kuwait | United States Department of State]</ref><br />
<br />
===Right to presumption of innocence===<br />
Article 34 of the Kuwaiti Constitution asserts the principle of presumption of innocence until proven guilty in a legal trial “in which the necessary guarantees for the exercise of the right of defence are secured,” clarifying that in addition to the right to counsel, right to trial, a fair trial, right to present a defence, and laying the foundations for habeas corpus (ensuring due process), physical and moral injury on the accused is prohibited.<ref>[http://hrlibrary.umn.edu/research/kuwait-constitution.html | Constitution of Kuwait 1962, Article 34 § 1 and 2]</ref><br />
<br />
===Standards of proof and conviction===<br />
While not explicitly spelling out “beyond reasonable doubt,” Kuwait’s adherence to the International Covenant on Civil and Political Rights (ICCPR) and Article 34 implies a high threshold: the prosecution must fully demonstrate guilt, with the defendant enjoying all rights to challenge the charges.<ref>[http://hrlibrary.umn.edu/research/kuwait-constitution.html | Constitution of Kuwait 1962, Article 34 § 1 and 2]</ref><br />
<br />
===Right against self-incrimination===<br />
Rule 158 protects against self-incrimination, stating that an accused cannot be forced to testify and that silence cannot be interpreted as guilt.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 157 and 158]</ref><br />
<br />
===Right to counsel and effective assistance===<br />
Rule 75 ensures that the accused attend all preliminary investigation procedures with a lawyer, although the lawyer cannot speak without permission of the investigator.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 75]</ref> Rule 120 of Kuwait’s CCP grants those accused with felony charges the right to counsel, assigning lawyers to the person if they don’t assign someone.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 120]</ref> Rule 98 provides the right to silence during interrogations, and that the accused can request that it be postponed until the presence of their lawyer.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 98]</ref> There are no rules guaranteeing effective assistance.<br />
<br />
===Right to a present a defense===<br />
The accused is presumed to be innocent<ref>[http://hrlibrary.umn.edu/research/kuwait-constitution.html | Constitution of Kuwait 1962, Article 34 § 1]</ref> and has the right to present a defense.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 29]</ref><br />
<br />
===Right to due process===<br />
Kuwaiti’s CCP Rules and Articles 69 to 213 are dedicated to outlining the due process rights.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Articles/ Rules 69-213]</ref><br />
<br />
===Right to equal protection of the laws===<br />
Article 29 of Kuwait’s Constitution grants people equal protection of the laws regardless of their identity and personal liberty.<ref>[http://hrlibrary.umn.edu/research/kuwait-constitution.html | Constitution of Kuwait 1962, Article 29 § 1 and 2]</ref><br />
<br />
===Right to bail===<br />
Kuwait’s CCP grants the right to bail in Article 219.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 219]</ref><br />
<br />
===Right against ex post facto prosecution===<br />
Article 32 of the Constitution prohibits ex post facto punishment: “no penalty may be imposed except for offences committed after the relevant law has come into force.”<ref>[http://hrlibrary.umn.edu/research/kuwait-constitution.html | Constitution of Kuwait 1962, Article 32 § 1]</ref><br />
<br />
===Right against double jeopardy===<br />
Article 184 of the Kuwait CCP establishes double jeopardy, meaning that someone cannot be tried twice for the same crime after an acquittal or conviction.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 184]</ref> The International Covenant of Civil and Political Rights (ICCPR), which Kuwait is a state party to, prohibits prosecuting a person twice for the same alleged offense.<ref>[https://www.ohchr.org/sites/default/files/ccpr.pdf | International Covenant of Civil and Political Rights, Article 14 § 7]</ref><br />
<br />
===Legality principle===<br />
Article 1 of the Kuwaiti CCP establishes the legality principle, that no one can be punished for a crime unless that crime and its corresponding penalty are explicitly defined in law before the act was committed.”<ref>[http://hrlibrary.umn.edu/research/kuwait-constitution.html | Constitution of Kuwait 1962, Article 1]</ref><br />
<br />
===Right to a fair trial===<br />
Generally<br />
Although the Constitution doesn’t mention the right to a “fair trial,” CCP Rule 158 protects the accused from compelled testimony, prohibiting forcing him to answer or make certain statements and stipulating that silence or failure to answer does not mean that he acknowledged something.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 158]</ref> However, the court is encouraged to draw from the defendant’s failure to answer or incorrect answer in their conclusion.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 158]</ref> Rule 157 of the CCP deems confessions that are forced or unclear statements inadmissible evidence.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 157]</ref> Lastly, Rule 159 reinforces that any confession obtained through torture coercion is inadmissible evidence.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 159]</ref><br />
<br />
Right to a trial by jury<br />
Kuaitans do not have the right to trial by jury.<ref>[https://2009-2017.state.gov/documents/organization/160074.pdf | 2009-2017 Kuwait | United States Department of State]</ref> Article 165 asserts that all trials are to be public—except otherwise prescribed by law (e.g., maintenance of public order, preservation of public morals).<ref>[http://hrlibrary.umn.edu/research/kuwait-constitution.html | Constitution of Kuwait 1962, Article 165]</ref><br />
<br />
Right to a speedy trial<br />
While the Constitution doesn’t specify a precise timeline, Rule 63 of Kuwait’s CCP ensures the right to a speedy trial by making arrest warrants expire after three months if not executed.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 63]</ref> Rules 60, 69, and 227 collectively promote a speedy trial by requiring that the accused be brought before an investigator within 48 hours of arrest,<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 60]</ref> mandating that public prosecutors complete investigations within a set timeframe when the accused is detained or else submit the matter for judicial review,<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 69]</ref> and obligating appellate courts to issue decisions within eight days of hearing the appeal.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 227]</ref> Kuwait is also party to the International Covenant on Civil and Political Rights which promotes a speedy trial as a fundamental human right to be upheld, for juveniles especially.<ref>[https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights | International Covenant on Civil and Political Rights | United Nations]</ref><br />
<br />
Right to an impartial judge<br />
Article 162 asserts that judges must have integrity and be impartial.<ref>[http://hrlibrary.umn.edu/research/kuwait-constitution.html | Constitution of Kuwait 1962, Article 162]</ref> Further, Article 163 requires that judges be independent when administering justice, prohibiting interference in trial verdicts.<ref>[http://hrlibrary.umn.edu/research/kuwait-constitution.html | Constitution of Kuwait 1962, Article 163]</ref><br />
<br />
===Right to language interpretation===<br />
Rule 170 of the CCP ensures that “If the accused or one of the witnesses is not familiar with Arabic, the court should use an interpreter to understand the accused’s statements and what is going on in the hearing and apply to the translators the judgments of the experts.”<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 170]</ref> However, The Advocates for Human Rights have reported that accused, particularly foreign nationals, facing state security charges are routinely denied access to their lawyers and language interpreters.<ref>[https://www.theadvocatesforhumanrights.org/Res/Kuwait%20CAT%20DP.pdf?utm_source=chatgpt.com | Kuwait’s Compliance with Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: The Death Penalty | The Advocates for Human Rights, p.4]</ref><br />
<br />
===Right to habeas corpus===<br />
A variety of provisions in Kuwait’s constitution function as a habeas corpus safeguard. Article 31 prohibits arrest, imprisonment, or restriction of liberty except in accordance with the law, this article embodies the core of habeas corpus—ensuring detention is lawful and subject to legal procedure.<ref>[http://hrlibrary.umn.edu/research/kuwait-constitution.html | Constitution of Kuwait 1962, Article 31]</ref> Article 32 reinforces the principle that no one can be detained or punished without a defined legal basis, aligning with habeas corpus by preventing imprisonment under vague or retroactive laws.<ref>[http://hrlibrary.umn.edu/research/kuwait-constitution.html | Constitution of Kuwait 1962, Article 32]</ref> Last, Article 34 ensures that all accused persons are presumed innocent and guaranteed the right to a legal defense, allowing them to contest the legality of their detention in court.<ref>[http://hrlibrary.umn.edu/research/kuwait-constitution.html | Constitution of Kuwait 1962, Article 34]</ref><br />
<br />
===Capital punishment===<br />
Kuwait’s CCP legalizes capital punishment.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 211]</ref> Death sentences must be reviewed by the Court of Cassation and the Amir.<ref>[https://www.ungeneva.org/en/news-media/meeting-summary/2024/10/examen-du-koweit-devant-le-comite-contre-la-torture-la#:~:text=The%20Committee%20against%20Torture%20today,application%20of%20the%20death%20penalty. | Experts of the Committee against Torture Commend Kuwait on Positive Measures to Prevent Torture, Raise Questions on the Independence of the Judiciary and the Death Penalty | United Nations]</ref><br />
<br />
===Right to appeal===<br />
The right to appeal is established in the Rules 199-213, which outline the framework for appealing convictions and sentences, specifying the hierarchy and types of courts (e.g., from the Court of First Instance, to the Court of Appeal, and ultimately the Court of Cassation), as well as procedural deadlines and grounds for appeal.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rules 199-213]</ref> Article 8 of the CCP grants the right to appeal decisions issued by criminal courts to the defendant and the Public Prosecutor.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 8]</ref><br />
<br />
==Rights of Counsel==<br />
===Right to provide representation===<br />
In Kuwait, the right to counsel is protected both constitutionally and through provisions in the Code of Criminal Procedure. Article 34 of the Constitution guarantees that an accused person is presumed innocent until proven guilty in a legal trial that provides the necessary safeguards to exercise the right of defense.<ref>[http://hrlibrary.umn.edu/research/kuwait-constitution.html | Constitution of Kuwait 1962, Article 34 § 1]</ref><br />
<br />
===Right of access to the client/ information===<br />
This foundational right is reinforced in the CCP, particularly in Rule 75, which allows both the accused and the victim to attend all preliminary investigation procedures with their lawyers present.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 75]</ref> Although the lawyer may not speak without the investigator’s permission, the presence of counsel is ensured, especially when the accused is in custody. Rule 98 further protects the accused’s rights during interrogation, allowing them to remain silent or request that questioning be delayed until their lawyer is present.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 98]</ref> It also grants the accused the right to challenge prosecution witnesses, call defense witnesses, and document all defenses and procedural requests in the official record.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 98]</ref><br />
<br />
===Right to confidential communication with the client===<br />
Kuwait provides protections for accessing legal counsel but falls short of guaranteeing confidential, privileged communication between the accused and their lawyer throughout the criminal process.<br />
<br />
==Means of protecting or enforcing rights==<br />
===Exclusionary rule===<br />
Kuwaiti criminal procedure law does not formally adopt an “exclusionary rule” by name, but it clearly prohibits the use of illegally obtained evidence, particularly confessions extracted through coercion or torture. Rule 159 explicitly states that confessions obtained under such conditions are inadmissible in court.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 159]</ref><br />
<br />
===Nullity of Procedure===<br />
There is no explicit “nullity of procedure” rule in the CCP, instead, Kuwait offers various procedural checks and judicial supervision (e.g., detention review, appeal deadlines, defense rights) that can invalidate improperly conducted legal actions in practice. Where violations occur, they can be challenged through appeals or petitions under existing rules, creating a de facto remedy for procedural irregularities.<br />
<br />
===Motions===<br />
Although the CCP lacks articles mentioning motions, it includes important procedural mechanisms to safeguard civil rights. Rule 154 allows formal objections to be raised regarding court composition or procedural defects and Rule 158 allows the accused to object to coercive questioning and refuse to testify (a defensive motion to protect rights.)<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 154 and 158]</ref> More broadly, the appeal procedures listed in Articles 199-213 of the CCP allow post-conviction motions to challenge judicial errors, procedural irregularities, or misapplication of law.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Articles 199-213]</ref><br />
<br />
===Contempt===<br />
So, while Kuwait does criminalize disrespect toward courts, there is no procedural rule in the criminal procedure code granting courts in-process contempt powers. According to Amnesty International, Article 147 of the Penal Code states anyone who “shows disrespect to a judge in a way that calls into question his integrity or his interest in his work or in his commitment to the provisions of law” may be punished by up to two years’ imprisonment and a fine, with the caveat that “honest criticism, in good faith” is exempt.<ref>[https://www.amnesty.be/IMG/pdf/kuwait_report_iron_fist_policy.pdf?utm_source=chatgpt.com | The ‘Iron Fist Policy’: Criminalization of peaceful dissent in Kuwait | Amnesty International, p.10]</ref><br />
<br />
===Civil actions===<br />
Kuwait’s Constitution ensures that citizens can employ civil action to protect their rights. Article 36 ensures the freedom of opinion, scientific research, verbal and written expression, “ in accordance with the conditions and procedures specified by law.”<ref>[http://hrlibrary.umn.edu/research/kuwait-constitution.html | Constitution of Kuwait 1962, Article 36]</ref> Article 37 establishes the freedom of the “press, printing, and publishing… in accordance with the conditions and manner specified by law.”<ref>[http://hrlibrary.umn.edu/research/kuwait-constitution.html | Constitution of Kuwait 1962, Article 37]</ref> According to Article 44, individuals have the right of assembly; while private meetings are unregulated, public meetings and demonstrations must be peaceful, “in accordance with the conditions and manner specified by law,” and “not contrary to morals.”<ref>[http://hrlibrary.umn.edu/research/kuwait-constitution.html | Constitution of Kuwait 1962, Article 44 § 1 and 2]</ref> Last, Article 45 gives every individual the right to address public authorities in writing, or petition; however, only constituted organizations and corporations have the right to petition collectively.<ref>[http://hrlibrary.umn.edu/research/kuwait-constitution.html | Constitution of Kuwait 1962, Article 45]</ref><br />
<br />
==Pre trial procedures==<br />
===Police procedures===<br />
====Complaint/information====<br />
In Kuwait, criminal complaints can be filed at police stations and through the Public Prosecutor's office.<ref>[https://www.state.gov/wp-content/uploads/2023/03/415610_KUWAIT-2022-HUMAN-RIGHTS-REPORT-1.pdf | Kuwait 2022 Human Rights Report | United States Department of State, p11]</ref><br />
<br />
====Arrest, search, and seizure Laws====<br />
=====Stops and frisks/ searches=====<br />
Kuwait’s Constitution and Code of Criminal Procedure No. 17/1960 (CCP) outlines legally prohibited searches, search warrants, purpose/ scope of searches, and incidental findings. Rule 80 of the Kuwaiti CCP, people’s homes and messages may be searched “with the investigator’s knowledge, consent, or order when there is no other means to obtain objects used in the crime.”<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 80]</ref> Rule 81 of the CCP establishes that searches should be “for the purpose of finding objects or traces of the crime or necessary evidence,” which may require the arrest of the searched, “within the force limitations described in Article 49.”<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 81]</ref> Then, in the CCP’s Rule 89, the person conducting the search should only look for the objects or traces permitted by the issued warrant, but if “objects deemed a crime or objects connected with another crime” are found, they can be seized and recorded in a report.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 89]</ref><br />
<br />
=====Arrests=====<br />
According to the Constitution’s Article 31, “no person shall be arrested, detained, searched, or compelled to reside in a specified place, nor shall the residence of any person or his liberty to choose his place of residence or his liberty of movement be restricted, except in accordance with the provisions of the law.” and no one “shall be subjected to torture or to degrading treatment.”<ref>[http://hrlibrary.umn.edu/research/kuwait-constitution.html | Constitution of Kuwait 1962, Article 31 § 1 and 2]</ref><br />
<br />
=====Pre-trial detention=====<br />
Pre-trial detention is addressed in § 3.2.3.4 of the CCP, including Rules 69-74.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960]</ref> Under Rule 69, initial detention is capped at three weeks and can only be renewed in 15-day increments by a judge.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 69]</ref> Rule 70 further restricts detention beyond six months, requiring a court order based on a review of the investigation and after hearing the accused.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 70]</ref> Additionally, Rules 72–74 provide mechanisms for conditional release at any time if detention is no longer necessary, including guarantees such as bail or written undertakings to ensure the accused’s future appearance.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%AD%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 72, 73, 74]</ref>According to the CCP, an individual may not be held in custody for more than four days without a written order from the investigator in felony cases, in misdemeanor cases, detention is limited to 48 hours without a written order, and detention can be extended in felony cases for up to 80 days, and in misdemeanor cases for up to 40 days, subject to judicial review.<ref>[https://www.lawgratis.com/blog-detail/criminal-procedure-code-at-kuwait | Criminal Procedure Code at Kuwait Arrest and Detention | Law Gratis]</ref><br />
<br />
=====Exceptions=====<br />
Note, Article 111 of the Constitution provides immunity to members of the National Assembly to searches, arrest, detention, and other penal measures while in session.<ref>[http://hrlibrary.umn.edu/research/kuwait-constitution.html | Constitution of Kuwait 1962, Article 11]</ref><br />
<br />
=====Enforcing the rules=====<br />
Kuwaiti criminal procedure law does not formally adopt an “exclusionary rule” by name, but it clearly prohibits the use of illegally obtained evidence, particularly confessions extracted through coercion or torture. Rule 159 explicitly states that confessions obtained under such conditions are inadmissible in court.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 159]</ref> Rule 157 further reinforces that only voluntary, clear, and conscious confessions may be used as evidence. Additionally, procedural fairness is upheld through Rule 154, which allows the accused to challenge the validity of trial procedures and seek remedies for formal errors.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 154]</ref> Finally, Rule 151 and 152 restrict judges from relying on personal knowledge or improperly documented pretrial materials, requiring that verdicts be based solely on legally obtained and properly presented evidence.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 151 and 152]</ref> Collectively, these provisions ensure that unlawfully acquired evidence is excluded and what pieces of evidence will be considered null.<br />
<br />
====Lineups and other identification procedures====<br />
=====Lineups=====<br />
The CCP doesn’t mention lineups or identification procedures.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960]</ref><br />
<br />
=====Other identification procedures=====<br />
However, Kuwait enacted Law No. 78/2015 allowing authorities to collect and use DNA evidence in criminal investigations.<ref>[https://www.lexismiddleeast.com/law/Kuwait/Law_78_2015 | Kuwait Law No. 78/2015 On DNA Identification | Lexis Middle East]</ref><br />
<br />
====Interrogation====<br />
=====Before formal charge in court=====<br />
Under Rule 98 of the CCP, the accused must be questioned orally by the investigator before the start of a preliminary investigation.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 98]</ref> The accused has the right to remain silent, to postpone the interrogation until their lawyer is present, and to refuse to sign statements.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 98]</ref> Confessions, if made, must be recorded in detail and signed by the accused, ensuring voluntariness.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 98]</ref> Importantly, the use of coercion, threats, or inducement is strictly prohibited.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 98]</ref> The accused also has the right during the investigation to present a defense, respond to the prosecution’s evidence, and request witnesses or additional investigative actions.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 162]</ref><br />
<br />
=====After defendant is formally charged=====<br />
Following formal charges and during trial, Rule 162 governs the procedure.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 162]</ref> If the accused pleads guilty or remains silent, the court must still conduct a full evidentiary investigation, including the hearing of witnesses and experts.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 162]</ref> The prosecution presents its case first, followed by the defense’s opportunity to present exculpatory evidence.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 162]</ref> The court retains discretion to question the accused again after the witness testimonies or at another time, as necessary for clarifying the facts and protecting the accused’s right to a defense.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 162]</ref><br />
<br />
=====Enforcing the rules=====<br />
Both Rule 98 and Rule 162 serve to protect the accused from unlawful interrogation. Rule 98 explicitly prohibits any form of coercion or manipulation and affirms the accused’s right to silence and counsel.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 98]</ref> It also ensures that the defense can be actively documented during the investigation.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 98]</ref> Rule 162 reinforces that even a guilty plea or silence cannot substitute for a full evidentiary review, ensuring that the court independently assesses the facts.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 162]</ref><br />
<br />
==Court procedures==<br />
===Pre-trial===<br />
====Initial court appearance====<br />
Regarding initial court appearances, pursuant to Article 131 of Kuwait’s Criminal Code of Procedures, the summons and trial date is scheduled by the court.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 131]</ref> According to Article 155 the court reads charges and requests a plea from the accused.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 155]</ref> The following rule states that the court may rule after a guilty plea if confession is validated.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 162]</ref> Article 162 ensures that silence or a plea doesn’t halt an investigation or evidence presentation. A series of articles, 165-166 mandates that witnesses attend and testify truthfully.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 165-166]</ref> Article 167 outlines structured rules for direct, cross, and re-direct examination, as well as protection of witnesses.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 167]</ref> According to Article 164, the court may call or recall any witness if deemed necessary for the trial.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 164]</ref><br />
<br />
====Charging instrument====<br />
Rule 105 states that the Public Prosecutor initiates felony cases, while investigators handle misdemeanors they have investigated under Article 9.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 105]</ref> Rule 106 expands this authority, allowing investigators to initiate proceedings for any crime they are legally empowered to investigate and prosecute.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 106]</ref> Rule 107 confirms that the person who conducted the investigation and made the decision to proceed is responsible for carrying out the charge in court.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 107]</ref><br />
<br />
====Preliminary hearing====<br />
Articles 144-145 of the Kuwait Criminal Code of Procedures, states that the court may remand or release the defendant based on factors of risk and evidence. Articles 148-149 allow summary resolution of misdemeanors through criminal orders.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 144-145]</ref> Article 168 permits judges to initiate specific investigative actions before trial. <ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 168]</ref><br />
<br />
====Pre-trial motions====<br />
Article 146 of Kuwait’s CCP says that if the court identifies a fundamental defect in the proceedings or investigation, it may order the procedure to be nullified or corrected—unless the flaw caused no harm to justice or the parties.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 146]</ref> According to Article 147, ruling of inadmissibility due to procedural defect does not prevent the complainant from re-filing the case once legal requirements are met.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 147]</ref> Article 154 establishes that the accused or other litigants may file objections to the composition of the court or procedural violations, and the court must address and correct any formal defect that can be remedied.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 154]</ref> According to Article 163, the court must consider requests from the accused or other parties to hear witnesses or conduct investigations but may reject the request if it is clearly frivolous, malicious, or unnecessary.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 163]</ref> As part of trial proceedings, Article 169 permits the court to order any person to submit documents or physical evidence relevant to the case and may seize or preserve such materials as necessary.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 169]</ref> Articles 146-147 states that the court can correct or annul defective procedures if they affect fairness.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 146-147]</ref> Article 154 allows the defendant to object to court composition or procedural errors.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 154]</ref> Article 163 permits litigants to request investigations, however, courts can deny frivolous motions.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 163]</ref> Pursuant to Article 169, the court may compel parties to produce documents or physical evidence.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 169]</ref><br />
<br />
====Discovery====<br />
Kuwait’s CCP Article 150 stipulates that when a case is tried summarily through a criminal order, the court must still conduct or delegate any necessary investigative procedures, following rules applicable to trial proceedings.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 150]</ref> Article 151 permits the court to form its judgment based on evidence from trial proceedings or pre-trial investigations but may not rely on the judge’s personal knowledge.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 151]</ref> Pre-trial investigation records can be included in the case file, not as primary proof, but to guide further investigative steps, interrogate witnesses, or support calling the investigator as a witness.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 152]</ref> If a judge who performed investigative actions is replaced, according to Article 153, the successor judge may rely on the previous findings unless those procedures are repeated at a party’s request.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 153]</ref> Article 154 allows the court to travel to inspect crime scenes, hear witnesses unable to attend, or conduct other investigations, or delegate these tasks to a judge or investigator under court-specified conditions.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 154]</ref> Article 169 allows the court to order any person to produce items or documents in their possession relevant to the case and may seize anything useful to the investigation or keep submitted materials until the case is resolved.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 169]</ref> Article 170 allows the court to appoint technical experts to provide reports, allow opposing experts to submit written opinions, and must appoint interpreters for non-Arabic-speaking defendants or witnesses, who are held to the same standard of honesty as expert witnesses.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 170]</ref> In the CCP, Articles 150-152 allows pre-trial investigation records to guide court inquiry but clarifies that it isn’t direct evidence.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 150-152]</ref> Article 153 permits successor judges to rely on earlier investigative records.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 153]</ref> Article 168 states that the court may conduct or delegate investigations such as scene inspection.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 168]</ref> Articles 169-170 states that the court may seize relevant materials and use experts or interpreters.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 169-170]</ref><br />
<br />
===Trial===<br />
====Nature of the trial====<br />
Kuwait’s CCP states that criminal cases are initiated by the public prosecutor or investigator and can only be heard under procedures established by law.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 129]</ref> An indictment must include full identification of the accused and plaintiff, details of the offense (acts, time, place, legal classification), and a list of evidence.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 130]</ref> Once the indictment is submitted, the court sets a hearing date, notifies the accused and relevant parties, and summons necessary witnesses.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 131]</ref> Article 132 makes it so that the court is not bound by the charge description in the indictment and may reclassify it based on findings.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 132]</ref> The prosecution may amend the indictment during trial, but the accused must be informed and allowed to prepare.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 133]</ref> If new facts arise that warrant changes in charges or defendants, the court may direct necessary amendments and ensure all investigative procedures are repeated as needed.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 134]</ref> If the court determines it is appropriate, Article 135 allows the court to refer a misdemeanor case to another competent court to ensure proper adjudication.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 135]</ref> Pursuant to Article 137, every trial session must be recorded by a clerk, including names of judges, litigants, statements, and procedural actions.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 137]</ref> Article 138 stipulates that the court president maintains courtroom order and may fine or imprison anyone who disrupts proceedings or disobeys the court.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 138]</ref> Immediate punishment may be imposed pursuant to Article 139 for offenses committed during trial, including perjury or assault on court officials.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 139]</ref> According to Article 140, if a new crime is discovered during trial, the court may investigate, arrest, or refer the accused for separate proceedings.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 140]</ref> Article 165 requires any person summoned as a witness to appear, swear an oath, and answer questions; refusal without excuse is punishable, and false statements are considered perjury.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 165]</ref> However, Article 166 says only witnesses over 14 who are mentally competent are sworn in; others may still be heard if the court finds their input valuable, using alternative communication as needed.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 166]</ref> Pursuant to Article 167, the court hears prosecution witnesses first, followed by cross-examination from the defense and civil parties, then hears defense witnesses under the same structure, while ensuring improper or intimidating questions are prohibited.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 167]</ref> Articles 129-131 and 136-141 are important to defining trial structure, public access, court records, and rights of attendance.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 129-131, 136-141]</ref> Articles 132-134 allow the court to amend charges and give time to the defense to respond.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 132-134]</ref> Article 135 allows the referral of misdemeanor cases to appropriate courts.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 135]</ref> Articles 137-140 permits judges to enforce order and handle in-court offenses and new crimes.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 137-140]</ref> Regulating witness testimony, oath-taking, cross-examination, and protection are all described in Articles 165-167.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 165-167]</ref> Articles 171-172 establish guidelines for final arguments, civil claims, and issuance of verdicts.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 171-172]</ref><br />
<br />
====Defendant====<br />
Articles 105-107 of Kuwait’s CCP describes how prosecutions are initiated against the defendant.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 105-107]</ref> Articles 118-121 explicitly provide specific rights afforded to the mentally ill, youth, and presence rules for trial.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 118-121]</ref> Articles 122-128 regulates fugitives, trials in absentia, and property seizures.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 122-128]</ref> The accused have the right to silence and protections against coercion and forced confessions pursuant to Articles 154-158.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 154-158]</ref> Articles 162-163 give the right to present and challenge evidence, as well as questioning witnesses.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 162-163]</ref> Finally, Articles 171-172 allow the right to respond last and to speak on sentencing factors.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 171-172]</ref><br />
<br />
====Lawyers====<br />
CCP Articles 117 and 120-121 provide Kuwaitians the right to appoint counsel in felonies and optional counsel in misdemeanors.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 117, 120-121]</ref> Articles 133-134 mandates that time be provided to prepare a defense and deliver closing arguments.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 133-134]</ref> Article 171 provides the right to submit a written defense and deliver closing arguments.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 171]</ref><br />
<br />
====Expert witnesses====<br />
Rule 99 ensures witness testimony procedures are governed by law, ensuring fairness and equal rights for both prosecution and defense in presenting and examining witnesses.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 99]</ref> Rule 12 protects witnesses by outlawing torture and coercion to obtain the accused or witness statements.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 12]</ref> There are only two articles outlining procedures for expert witnesses. Article 100 states that investigators are allowed to ask experts opinions after being sworn in<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 100]</ref> and Article 101 states that experts must submit their opinions in writing and litigants have to submit reports from other experts in an advisory capacity.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 101]</ref><br />
<br />
====Judges====<br />
In Kuwait’s Criminal Code of Procedures, Articles 105-107 describe how prosecutions are initiated against the defendant.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 105-107]</ref> Articles 138-140 preside over decorum, punishing disruptions, and courtroom discipline.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 138-140]</ref> Article 151 grants the judge permission to weigh evidence independently but also prohibits the use of personal knowledge.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 151]</ref> Article 153 states that successor judges can rely on predecessor’s records unless procedures are repeated.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 153]</ref> Article 168 allows judges to inspect crime scenes or delegate investigative procedures.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 168]</ref> Consequently, Articles 169-170 allows judges to compel evidence production and appoint experts or interpreters.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 169-170]</ref><br />
<br />
====Victims and Civil Plaintiffs====<br />
Articles 109-117 of Kuwait’s CCP states that victims may initiate cases, join proceedings, and claim damages.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 109-117]</ref> Article 165 stipulates that victims may be called as witnesses and are subject to witness rules.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 165]</ref> Last, Articles 171-172 allows civil claims to be heard alongside criminal cases and ruled upon in verdict.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 171-172]</ref><br />
<br />
===Sentencing===<br />
Article 173 of Kuwait’s CCP states that procedures for disqualifying or dismissing a judge follow the rules of the Civil and Commercial Liftings Act.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 173]</ref> Article 174 mandates that judges deliberate in secret and issue verdicts by majority; if there is no majority, junior judges must join one of the prevailing opinions.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 174]</ref> Article 175 requires that all judgments be written with reasons and include detailed case information, such as the names of judges, litigants, legal arguments, and a summary of proceedings.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 175]</ref> The draft verdict must be filed, and though copies are not immediately available, parties may inspect the draft until the final version is complete.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 175]</ref> Article 176 provides that the verdict must be read aloud in a public hearing by the presiding judge, with all involved judges present and their drafts signed within seven days.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 176]</ref> Article 177 requires the presiding judge and court clerk to sign the final judgment and store it in the case file within three days of filing the draft.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 177]</ref> Article 178 prohibits changing the verdict after it is pronounced, except for minor clerical corrections.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 178]</ref> Article 179 allows both the accused and plaintiff to receive official copies of the verdict free of charge, while other interested parties may request copies for a fee unless exempted by the judge.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 179]</ref> Article 180 instructs the court to resolve disputes over seized items or refer them to a civil court, with the option to order confiscation, return, or destruction.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 180]</ref> Article 181 delays execution of seizure orders until the appeal period ends, though items may be handed over immediately with or without a guarantee.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 181]</ref> Article 182 allows the court to order a good-faith buyer of stolen property to surrender equivalent seized funds from the convicted seller to cover restitution.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 182]</ref> Article 183 permits the court to place disputed property in custody during a trial and, if force was used in a crime, return it to the person from whom it was unlawfully taken.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 183]</ref> Article 184 and 185 establish that a final verdict bars retrial for the same acts, but if new facts reveal a different crime not known to the court at the time, a new case may be filed.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 184 and 185]</ref><br />
<br />
===Appeals===<br />
====Right to counsel====<br />
Article 202 of Kuwait’s CCP acknowledges and accommodates legal representation during appeals.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 202]</ref> The code states that the appeal petition must be signed by the appellant or on their behalf, implying representation by a lawyer is permitted and typical. It also allows detained individuals to appeal through the prison warden, recognizing counsel is not always accessible in custody but not excluding it.<br />
<br />
====Ineffective assistance of counsel====<br />
None of the articles explicitly recognize ineffective assistance of counsel as a ground for appeal.<br />
<br />
====Other grounds for appeal====<br />
Articles 199-211 outline other grounds for appeal. Article 199 permits appeals of all first-instance verdicts (convictions or acquittals) in misdemeanors or felonies.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 199]</ref> Article 200 allows appeals of civil rulings issued by criminal courts under the same grounds as civil court appeals.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 200]</ref> Article 200 bis expands appeal rights to the Supreme Court of Appeal for public prosecutors and civil parties in misdemeanor cases.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 200 bis]</ref> Article 201 establishes a 20-day appeal deadline from the date of ruling or opposition.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 201]</ref> Article 203 requires that the appeal file be transferred to the competent court within 3 days, and that all parties be notified.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 203]</ref> Article 204 addresses how appeals proceed in case of absence of a party; if the appellant is absent, the court may treat the appeal as void.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 204]</ref> According to Article 206 appeals may be rejected for procedural or jurisdictional defects.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 206]</ref> By Article 207 if the appeal is valid, the court must hear arguments and may conduct further investigation or witness testimony.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 207]</ref> Article 208 allows the court to uphold the ruling or correct formal defects if the conviction itself is sound.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 208]</ref> Article 209 forces the court to annul the judgment if it finds an uncorrectable formal or legal defect or that it contradicts the law.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 209]</ref> Article 210 makes no opposition (i.e., objection) is allowed against appeal judgments.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 210]</ref> Article 211 makes all death penalty rulings automatically referred to the Supreme Court of Appeal for full review.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 211]</ref> Article 212 allows appeal of any procedural or investigative action taken by the police or courts, not subject to specific form or deadline (i.e., flexible complaints mechanism).<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 212]</ref><br />
<br />
====Collateral remedies (habeas etc…)====<br />
Article 212 is the closest analog to a collateral remedy, allowing appealing any action by police, investigators, or courts at any time during proceedings, and without adhering to formal deadlines.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 212]</ref> However, the court is not obligated to rule on such appeals, and silence is treated as implicit rejection.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 212]</ref><br />
<br />
==Rights in prison==<br />
===Right to humane conditions of confinement===<br />
Regarding humane conditions in prison, Article 224 of Kuwait’s CCP establishes that no person may be held in prison without a proper detention or court order and also implies protection against arbitrary or unauthorized imprisonment.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 224]</ref> Article 225 requires a prisoner file and a central registry with admission and release details, supporting transparency and accountability in prison administration.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 225]</ref> Article 226 prohibits imprisonment in non-designated facilities, ensuring that detainees are held only in approved, regulated prisons.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 226]</ref><br />
<br />
===Immigrant’s rights in detention===<br />
Kuwait’s CCP doesn’t outline direct protections or procedures specific to immigrant detainees.<br />
<br />
===Right to medical care in prison===<br />
Article 15 of the Constitution establishes a state-funded healthcare system that provides free treatment to Kuwaiti citizens.<ref>[http://hrlibrary.umn.edu/research/kuwait-constitution.html | Constitution of Kuwait 1962, Article 15]</ref> The Ministry of Health is responsible for ensuring prisoners’ legal right to receive necessary medical care, including access to a hospital within the prison and referrals to external hospitals.<ref>[https://www.icrc.org/en/document/kuwait-improving-health-care-prisons#:~:text=%22Prisoners%20have%20a%20right%20to,dialogue%20with%20the%20authorities%20concerned. | Kuwait: Improving Health Care in Prisons | International Committee of the Red Cross]</ref> According to Advocates for Human Rights, it is unclear whether or not Kuwait permits prisoners to request and receive attention from an independent physician.<ref>[https://www.theadvocatesforhumanrights.org/Res/Kuwait%20CAT%20DP.pdf?utm_source=chatgpt.com | Kuwait’s Compliance with Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: The Death Penalty | The Advocates for Human Rights, p.3]</ref><br />
<br />
===Right to mental health care===<br />
Kuwait’s CCP doesn’t explicitly guarantee mental health care in prison.<br />
<br />
===Restriction of rights===<br />
Although there are not many articles/ rules restricting rights of prisoners, the following can be interpreted as such: in Kuwait’s CCP, Article 219 allows the court to immediately enforce a prison sentence or detain a convicted person pending appeal, unless bail is granted and the person is not considered a flight risk.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 219]</ref> Article 226 mandates that imprisonment can only occur in officially designated facilities, restricting prisoners from being held elsewhere regardless of circumstance.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 226]</ref><br />
<br />
===Rights of special populations===<br />
====Women====<br />
Rule 51 of the CCP specifies that when women are arrested they must also be searched,<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 51]</ref> and according to Rule 82, this search must be conducted by a woman investigator.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 82]</ref> Article 218 mandates that a pregnant woman facing the death penalty who gives birth must have her sentence commuted to life imprisonment, and women with young children are also exempt from execution.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Article 218]</ref> Regarding inspection of homes, if there are veiled women in the space then the investigator ought to “take into account the traditions used in their treatment” and allow them to be detained or leave the dwelling.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 86]</ref><br />
<br />
====LGBT prisoners====<br />
Kuwait’s CCP doesn’t provide rights for the LGBTQ+ population.<br />
<br />
====Mentally ill prisoners====<br />
Rule 118 of the CCP states that if a forensic doctor determines that the accused is mentally ill and unable to defend themselves, the court or investigator must pause the proceedings until the person regains capacity. However, if the court finds that the mental illness existed before or during the crime and rendered the accused not criminally responsible, it can issue a verdict without delay. The court may also acquit the accused if innocence is clear, even without a defense. In all cases, the court may order the accused to be placed in a mental health facility or released to a relative for care, and impose custody arrangements as it sees fit.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 118]</ref><br />
<br />
====Juveniles====<br />
According to the Child Rights International Network, Kuwait abolished the death penalty for any offenses committed under the age of 18 in March 2017.<ref>[https://archive.crin.org/sites/default/files/inhuman_sentencing_of_children_in_kuwait_december_2017.pdf | Inhuman Sentencing of Children in Kuwait | Child Rights International Network, p.1]</ref> This followed a package of policies that reformed the juvenile criminal justice system under Law No. 11 which issued the “Juvenile Law.”<ref>[https://archive.crin.org/sites/default/files/inhuman_sentencing_of_children_in_kuwait_december_2017.pdf | Inhuman Sentencing of Children in Kuwait | Child Rights International Network, p.1]</ref> However, the Juvenile Law (2015/111/2016) set 16 as the upper age limit for juvenile court handling, therefore opening up many older children to longer sentencing as adults and life imprisonment.<ref>[https://natlex.ilo.org/dyn/natlex2/r/natlex/fe/details?p3_isn=104061#:~:text=The%20law%20reformed%20the%20juvenile,to%20be%20sentenced%20as%20adults. | Law No. 111 of 2015 promulgating the Juvenile Law | International Labor Organization]</ref> The CRI claims in Kuwait, children under the age of seven cannot be held criminally responsible.<ref>[https://archive.crin.org/en/home/ages/asia.html | Minimum Ages of Criminal Responsibility in Asia | Child Rights International Network, Juveniles Act, Article 6]</ref> Children aged seven to 15 who commit unlawful acts may be subject to penalties under the Juvenile Act, including detention in an institution.<ref>[https://archive.crin.org/en/home/ages/asia.html | Minimum Ages of Criminal Responsibility in Asia | Child Rights International Network, Juveniles Act, No. 3 of 1983, Article 6]</ref> By the provisions of Rule 109, any legal actions/ complaints involving children under 21 must be brought through their guardian or representative.<ref>[https://www.aalawyer.co/procesureeslawcriminal-2/#:~:text=%D8%A7%D9%84%D9%85%D8%ﺤ%D8%A7%D9%85%D9%8A%2520%D8%A3%D8%AD%D9%85%D8%AF%2520%D8%A7%D9%84%D8%B5%D9%84%D9%8A%D9%84%D9%8A%2520%252D%2520Kuwait's%2520Code%2520of%2520Procedures%252017/1960.&text=Kuwait's%2520Code%2520of%2520Procedure%2520and%2520Criminal%2520Trials%252017/1960. | Kuwait’s Code of Procedure and Criminal Trials 17/1960, Rule 109]</ref><br />
<br />
==References==</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Kuwait&diff=381685Kuwait2025-08-22T15:58:43Z<p>IBJadmin: </p>
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• [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
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<br />
==Introduction==<br />
<br />
===Background===<br />
<br />
Kuwait is an Arabic-speaking state located in the Middle East, bordering the Persian Gulf, Iraq, and Saudi Arabia. Since the 18th century, Kuwait has been ruled by the AL-SABAH dynasty, however Ottoman invasion in 1899 led to the dynasty ceding foreign and defense responsibility to Britain until it gained independence in 1961. Iraq overran Kuwait in 1990, but a UN coalition led by the United States liberated Kuwait. In 1992, the parliament was reconstituted by the Amir. Among the Arab Spring protests (2010-2011) a stateless group known as the Bidoons staged demonstrations demanding equal citizenship, job opportunities, and benefits as Kuwaiti nationals. By the end of the protests, the prime minister resigned amid corruption allegations. In 2012, demonstrations resumed responding to an amendment in electoral law that lessened the voting power of tribal blocs. From 2012-2013, Sunni Islamists, tribal populists, and some liberals boycotted legislative elections, leading to a legislature more amenable to the government’s agenda. Oppositionists and independents won nearly half of the National Assembly seats and drove up political polarization. From 2006 to 2020, the National Assembly was dissolved seven times and the cabinet was shuffled over a dozen, mostly because of gridlock between the legislature and the government. However, the Amir, who assumed his role in 2020, launched a “National Dialogue” to resolve political stagnation. (Factbook) Today, Kuwait is known for being an oil-rich and wealthy desert state that has a high standard of living and well-developed infrastructure with a predominantly Muslim culture, with tradition a part of daily life. 30.4% of the population is Kuwaiti, 27.4% is from another Arab state, 40.3% is Asian, and 1% is African—with a majority of the population located in the Gulf region. As of June 2025, Kuwait’s government has been involved in discussing Israel-Iran strikes with the Turkish president and Oman’s sultan amidst heightened tensions over the Palestine-Israel conflict, in which Kuwait has pledged support for Palestine.<br />
<br />
===Type of system===<br />
<br />
Kuwait’s legal system is hybrid; consisting of English common law, French civil law, and Islamic Sharia law, and Egyptian law. Islamic law is present in personal matters (e.g., marriage, divorce, inheritance) but the Kuwaiti Constitution of 1962, which serves as the primary source of legislation, does provide for an independent judiciary. The state has not accepted the compulsory ICJ jurisdiction. The highest courts include the Constitutional Court, consisting of 5 judges, and the Supreme Court/ Court of Cassation, which is organized into circuits, each with 5 judges. Judges are selected by appointment from the Amir or recommendation of the Supreme Judicial Council (composed of judges and Ministry of Justice officials. Subordinate courts include the High Court of Appeal, Court of First Instance, and Summary Court.<br />
<br />
===Legal aid===<br />
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====State-sponsored legal aid====<br />
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Kuwait does not have a formal state-sponsored legal aid program.<br />
<br />
====NGOs providing pro bono legal aid====<br />
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However, the Kuwait Bar Association is mandated by courts to appoint lawyers in criminal, civil, and commercial cases for indigent defendants. Non-governmental organizations that provide pro bono legal aid in Kuwait include Al-Twaijri & Partners, UNHCR Kuwait, Al-Arbash International Law Center, and Kuwait Humanitarian Centre.<br />
<br />
====Number of lawyers====<br />
<br />
As of 2015, there were 6,000 lawyers serving a population of 4.3 million people in Kuwait. Data on the total number of lawyers (by criminal/ civil) is not publicly available.<br />
<br />
===Sources of defendant’s rights?===<br />
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====National sources of defendant’s rights====<br />
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Defendant's rights are guaranteed by the Constitution of Kuwait (1962) which outlines the presumption of innocence, due process, the independent judiciary, and freedom from arbitrary detention. The Ministry of Justice regulations govern prosecution, court procedures, and legal aid appointments.<br />
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====International sources of defendant’s rights====<br />
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Kuwait is also subject to the International Covenant on Civil and Political Rights (ICCPR), including obligations of, respectively, independence and impartiality of judges, and the independence of prosecutors. Kuwait is also signatory to the Universal Declaration of Human Rights (UDHR), UN Convention Against Torture, Convention on the Rights of the Child, and Convention on the Elimination of Discrimination Against Women, among others.<br />
<br />
==Rights of the accused==<br />
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===Right against unlawful arrests, searches, and seizures===<br />
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Rule 63 of Kuwait’s CCP states that any arrest order must be written, dated, signed, and include the accused’s name, residence, and justification for arrest. The officer must notify the accused and inform them of the content of the warrant upon request. The warrant expires after three months if not executed and cannot be reissued without renewal. Rule 92 allows seizure only when necessary for investigation or trial, ensuring detentions are not used to justify arbitrary confiscation. Rule 94 mandates that legitimate owners can challenge seizures in court, ensuring a legal avenue to reclaim unlawfully held property. Rule 95 specifies that non-essential items must be returned, preventing indefinite or unnecessary possession of personal property. Rules 93-97 establish procedures for handling, storing, and returning seized property, guaranteeing that evidence is preserved under secure conditions and returned once it is no longer needed.<br />
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===Right against unlawful detention===<br />
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According to Rule 63, if a warrant isn’t executed within three months, it automatically lapses, safeguarding against outdated legal bases for detention. Upon arrest under a warrant, the accused must be presented to the investigator without delay and cannot be held more than 4 days without a written detention order. Rule 69 states pre-trial detention can start with up to 3 weeks based on the investigative authority’s decision. After that, only a judge can extend detention—and only in 15-day increments. If pre-trial detention occurs six months from the date of arrest, a court will hear the case at the request of an investigator and determine renewal of detention depending on the statements of the accused and facts of the case. This is a safeguard against indefinite detention without court review, ensuring regular judicial oversight.<br />
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===Right not to be tortured or ill-treated===<br />
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Article 34 of the Constitution mandates accused persons not suffer physical or moral harm, guaranteeing a freedom from punishment.<br />
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===Right to medical care===<br />
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Article 15 of the Constitution establishes a state-funded healthcare system that provides free treatment to Kuwaiti citizens. Although the CCP doesn’t guarantee medical care to the accused, the Ministry of the Interior has confirmed that detainees are administered an examination upon entry and those with injuries are provided medical attention.<br />
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===Right to be informed of charges===<br />
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In Kuwait’s CCP, the right to notice of charges is protected by Rule 63 which stipulates that anyone arrested must be informed of the charges against them, though the formal warrant may only be shown if the person explicitly requests it. Article 31 of the Constitution further ensures no person shall be arrested or detained without conformity to the law, requiring awareness of criminal allegations at the time of arrest. While authorities are required to provide notice of charges, the United States Department of States’ Human Rights report claims “defendants who did not speak or understand Arabic learned of the charges against them only after their trial began” because they didn’t have interpreters.<br />
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===Right to presumption of innocence===<br />
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Article 34 of the Kuwaiti Constitution asserts the principle of presumption of innocence until proven guilty in a legal trial “in which the necessary guarantees for the exercise of the right of defence are secured,” clarifying that in addition to the right to counsel, right to trial, a fair trial, right to present a defence, and laying the foundations for habeas corpus (ensuring due process), physical and moral injury on the accused is prohibited.<br />
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===Standards of proof and conviction===<br />
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While not explicitly spelling out “beyond reasonable doubt,” Kuwait’s adherence to the International Covenant on Civil and Political Rights (ICCPR) and Article 34 implies a high threshold: the prosecution must fully demonstrate guilt, with the defendant enjoying all rights to challenge the charges.<br />
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===Right against self-incrimination===<br />
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Rule 158 protects against self-incrimination, stating that an accused cannot be forced to testify and that silence cannot be interpreted as guilt.<br />
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===Right to counsel and effective assistance===<br />
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Rule 75 ensures that the accused attend all preliminary investigation procedures with a lawyer, although the lawyer cannot speak without permission of the investigator. Rule 120 of Kuwait’s CCP grants those accused with felony charges the right to counsel, assigning lawyers to the person if they don’t assign someone. Rule 98 provides the right to silence during interrogations, and that the accused can request that it be postponed until the presence of their lawyer. There are no rules guaranteeing effective assistance.<br />
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===Right to a present a defense===<br />
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The accused is presumed to be innocent and has the right to present a defense.<br />
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===Right to due process===<br />
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Kuwaiti’s CCP Rules and Articles 69 to 213 are dedicated to outlining the due process rights.<br />
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===Right to equal protection of the laws===<br />
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Article 29 of Kuwait’s Constitution grants people equal protection of the laws regardless of their identity and personal liberty.<br />
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===Right to bail===<br />
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Kuwait’s CCP grants the right to bail in Article 219.<br />
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===Right against ex post facto prosecution===<br />
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Article 32 of the Constitution prohibits ex post facto punishment: “no penalty may be imposed except for offences committed after the relevant law has come into force.”<br />
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===Right against double jeopardy===<br />
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Article 184 of the Kuwait CCP establishes double jeopardy, meaning that someone cannot be tried twice for the same crime after an acquittal or conviction. The International Covenant of Civil and Political Rights (ICCPR), which Kuwait is a state party to, prohibits prosecuting a person twice for the same alleged offense.<br />
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===Legality principle===<br />
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Article 1 of the Kuwaiti CCP establishes the legality principle, that no one can be punished for a crime unless that crime and its corresponding penalty are explicitly defined in law before the act was committed.”<br />
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===Right to a fair trial===<br />
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====Generally====<br />
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Although the Constitution doesn’t mention the right to a “fair trial,” CCP Rule 158 protects the accused from compelled testimony, prohibiting forcing him to answer or make certain statements and stipulating that silence or failure to answer does not mean that he acknowledged something. However, the court is encouraged to draw from the defendant’s failure to answer or incorrect answer in their conclusion. Rule 157 of the CCP deems confessions that are forced or unclear statements inadmissible evidence. Lastly, Rule 159 reinforces that any confession obtained through torture coercion is inadmissible evidence.<br />
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====Right to a trial by jury====<br />
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Kuwaitans do not have the right to trial by jury. Article 165 asserts that all trials are to be public—except otherwise prescribed by law (e.g., maintenance of public order, preservation of public morals).<br />
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====Right to a speedy trial====<br />
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While the Constitution doesn’t specify a precise timeline, Rule 63 of Kuwait’s CCP ensures the right to a speedy trial by making arrest warrants expire after three months if not executed. Rules 60, 69, and 227 collectively promote a speedy trial by requiring that the accused be brought before an investigator within 48 hours of arrest, mandating that public prosecutors complete investigations within a set timeframe when the accused is detained or else submit the matter for judicial review, and obligating appellate courts to issue decisions within eight days of hearing the appeal. Kuwait is also party to the International Covenant on Civil and Political Rights which promotes a speedy trial as a fundamental human right to be upheld, for juveniles especially.<br />
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====Right to an impartial judge====<br />
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Article 162 asserts that judges must have integrity and be impartial. Further, Article 163 requires that judges be independent when administering justice, prohibiting interference in trial verdicts.<br />
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===Right to language interpretation===<br />
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Rule 170 of the CCP ensures that “If the accused or one of the witnesses is not familiar with Arabic, the court should use an interpreter to understand the accused’s statements and what is going on in the hearing and apply to the translators the judgments of the experts.” However, The Advocates for Human Rights have reported that accused, particularly foreign nationals, facing state security charges are routinely denied access to their lawyers and language interpreters.<br />
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===Right to habeas corpus===<br />
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A variety of provisions in Kuwait’s constitution function as a habeas corpus safeguard. Article 31 prohibits arrest, imprisonment, or restriction of liberty except in accordance with the law, this article embodies the core of habeas corpus—ensuring detention is lawful and subject to legal procedure. Article 32 reinforces the principle that no one can be detained or punished without a defined legal basis, aligning with habeas corpus by preventing imprisonment under vague or retroactive laws. Last, Article 34 ensures that all accused persons are presumed innocent and guaranteed the right to a legal defense, allowing them to contest the legality of their detention in court.<br />
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===Capital punishment===<br />
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Kuwait’s CCP legalizes capital punishment. Death sentences must be reviewed by the Court of Cassation and the Amir.<br />
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===Right to appeal===<br />
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The right to appeal is established in the Rules 199-213, which outline the framework for appealing convictions and sentences, specifying the hierarchy and types of courts (e.g., from the Court of First Instance, to the Court of Appeal, and ultimately the Court of Cassation), as well as procedural deadlines and grounds for appeal. Article 8 of the CCP grants the right to appeal decisions issued by criminal courts to the defendant and the Public Prosecutor.<br />
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==Rights of Counsel==<br />
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===Right to provide representation===<br />
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In Kuwait, the right to counsel is protected both constitutionally and through provisions in the Code of Criminal Procedure. Article 34 of the Constitution guarantees that an accused person is presumed innocent until proven guilty in a legal trial that provides the necessary safeguards to exercise the right of defense.<br />
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===Right of access to the client/ information===<br />
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This foundational right is reinforced in the CCP, particularly in Rule 75, which allows both the accused and the victim to attend all preliminary investigation procedures with their lawyers present. Although the lawyer may not speak without the investigator’s permission, the presence of counsel is ensured, especially when the accused is in custody. Rule 98 further protects the accused’s rights during interrogation, allowing them to remain silent or request that questioning be delayed until their lawyer is present. It also grants the accused the right to challenge prosecution witnesses, call defense witnesses, and document all defenses and procedural requests in the official record.<br />
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===Right to confidential communication with the client===<br />
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Kuwait provides protections for accessing legal counsel but falls short of guaranteeing confidential, privileged communication between the accused and their lawyer throughout the criminal process.<br />
<br />
==Means of protecting or enforcing rights==<br />
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===Exclusionary rule===<br />
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Kuwaiti criminal procedure law does not formally adopt an “exclusionary rule” by name, but it clearly prohibits the use of illegally obtained evidence, particularly confessions extracted through coercion or torture. Rule 159 explicitly states that confessions obtained under such conditions are inadmissible in court.<br />
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===Nullity of Procedure===<br />
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There is no explicit “nullity of procedure” rule in the CCP, instead, Kuwait offers various procedural checks and judicial supervision (e.g., detention review, appeal deadlines, defense rights) that can invalidate improperly conducted legal actions in practice. Where violations occur, they can be challenged through appeals or petitions under existing rules, creating a de facto remedy for procedural irregularities.<br />
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===Motions===<br />
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Although the CCP lacks articles mentioning motions, it includes important procedural mechanisms to safeguard civil rights. Rule 154 allows formal objections to be raised regarding court composition or procedural defects and Rule 158 allows the accused to object to coercive questioning and refuse to testify (a defensive motion to protect rights.) More broadly, the appeal procedures listed in Articles 199-213 of the CCP allow post-conviction motions to challenge judicial errors, procedural irregularities, or misapplication of law.<br />
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===Contempt===<br />
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So, while Kuwait does criminalize disrespect toward courts, there is no procedural rule in the criminal procedure code granting courts in-process contempt powers. According to Amnesty International, Article 147 of the Penal Code states anyone who “shows disrespect to a judge in a way that calls into question his integrity or his interest in his work or in his commitment to the provisions of law” may be punished by up to two years’ imprisonment and a fine, with the caveat that “honest criticism, in good faith” is exempt.<br />
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===Civil actions===<br />
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Kuwait’s Constitution ensures that citizens can employ civil action to protect their rights. Article 36 ensures the freedom of opinion, scientific research, verbal and written expression, “in accordance with the conditions and procedures specified by law.” Article 37 establishes the freedom of the “press, printing, and publishing… in accordance with the conditions and manner specified by law.” According to Article 44, individuals have the right of assembly; while private meetings are unregulated, public meetings and demonstrations must be peaceful, “in accordance with the conditions and manner specified by law,” and “not contrary to morals.” Last, Article 45 gives every individual the right to address public authorities in writing, or petition; however, only constituted organizations and corporations have the right to petition collectively.<br />
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==Pre trial procedures==<br />
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===Police procedures===<br />
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====Complaint/information====<br />
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In Kuwait, criminal complaints can be filed at police stations and through the Public Prosecutor's office.<br />
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====Arrest, search, and seizure Laws====<br />
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=====Stops and frisks/ searches=====<br />
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Kuwait’s Constitution and Code of Criminal Procedure No. 17/1960 (CCP) outlines legally prohibited searches, search warrants, purpose/ scope of searches, and incidental findings. Rule 80 of the Kuwaiti CCP, people’s homes and messages may be searched “with the investigator’s knowledge, consent, or order when there is no other means to obtain objects used in the crime.” Rule 81 of the CCP establishes that searches should be “for the purpose of finding objects or traces of the crime or necessary evidence,” which may require the arrest of the searched, “within the force limitations described in Article 49.” Then, in the CCP’s Rule 89, the person conducting the search should only look for the objects or traces permitted by the issued warrant, but if “objects deemed a crime or objects connected with another crime” are found, they can be seized and recorded in a report.<br />
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=====Arrests=====<br />
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According to the Constitution’s Article 31, “no person shall be arrested, detained, searched, or compelled to reside in a specified place, nor shall the residence of any person or his liberty to choose his place of residence or his liberty of movement be restricted, except in accordance with the provisions of the law.” and no one “shall be subjected to torture or to degrading treatment.”<br />
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=====Pre-trial detention=====<br />
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Pre-trial detention is addressed in § 3.2.3.4 of the CCP, including Rules 69-74. Under Rule 69, initial detention is capped at three weeks and can only be renewed in 15-day increments by a judge. Rule 70 further restricts detention beyond six months, requiring a court order based on a review of the investigation and after hearing the accused.<br />
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=====Searches=====<br />
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Additionally, Rules 72–74 provide mechanisms for conditional release at any time if detention is no longer necessary, including guarantees such as bail or written undertakings to ensure the accused’s future appearance. According to the CCP, an individual may not be held in custody for more than four days without a written order from the investigator in felony cases, in misdemeanor cases, detention is limited to 48 hours without a written order, and detention can be extended in felony cases for up to 80 days, and in misdemeanor cases for up to 40 days, subject to judicial review.<br />
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=====Exceptions=====<br />
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Note, Article 111 of the Constitution provides immunity to members of the National Assembly to searches, arrest, detention, and other penal measures while in session.<br />
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=====Enforcing the rules=====<br />
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Kuwaiti criminal procedure law does not formally adopt an “exclusionary rule” by name, but it clearly prohibits the use of illegally obtained evidence, particularly confessions extracted through coercion or torture. Rule 159 explicitly states that confessions obtained under such conditions are inadmissible in court. Rule 157 further reinforces that only voluntary, clear, and conscious confessions may be used as evidence. Additionally, procedural fairness is upheld through Rule 154, which allows the accused to challenge the validity of trial procedures and seek remedies for formal errors. Finally, Rule 151 and 152 restrict judges from relying on personal knowledge or improperly documented pretrial materials, requiring that verdicts be based solely on legally obtained and properly presented evidence. Collectively, these provisions ensure that unlawfully acquired evidence is excluded and what pieces of evidence will be considered null.<br />
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====Lineups and other identification procedures====<br />
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=====Lineups=====<br />
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The CCP doesn’t mention lineups or identification procedures.<br />
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=====Other identification procedures=====<br />
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However, Kuwait enacted Law No. 78/2015 allowing authorities to collect and use DNA evidence in criminal investigations.<br />
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====Interrogation====<br />
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=====Before formal charge in court=====<br />
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Under Rule 98 of the CCP, the accused must be questioned orally by the investigator before the start of a preliminary investigation. The accused has the right to remain silent, to postpone the interrogation until their lawyer is present, and to refuse to sign statements. Confessions, if made, must be recorded in detail and signed by the accused, ensuring voluntariness. Importantly, the use of coercion, threats, or inducement is strictly prohibited. The accused also has the right during the investigation to present a defense, respond to the prosecution’s evidence, and request witnesses or additional investigative actions.<br />
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=====After defendant is formally charged=====<br />
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Following formal charges and during trial, Rule 162 governs the procedure. If the accused pleads guilty or remains silent, the court must still conduct a full evidentiary investigation, including the hearing of witnesses and experts. The prosecution presents its case first, followed by the defense’s opportunity to present exculpatory evidence. The court retains discretion to question the accused again after the witness testimonies or at another time, as necessary for clarifying the facts and protecting the accused’s right to a defense.<br />
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=====Enforcing the rules=====<br />
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Both Rule 98 and Rule 162 serve to protect the accused from unlawful interrogation. Rule 98 explicitly prohibits any form of coercion or manipulation and affirms the accused’s right to silence and counsel. It also ensures that the defense can be actively documented during the investigation. Rule 162 reinforces that even a guilty plea or silence cannot substitute for a full evidentiary review, ensuring that the court independently assesses the facts.<br />
<br />
==Court procedures==<br />
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===Pre-trial===<br />
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====Initial court appearance====<br />
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Regarding initial court appearances, pursuant to Article 131 of Kuwait’s Criminal Code of Procedures, the summons and trial date is scheduled by the court. According to Article 155 the court reads charges and requests a plea from the accused. The following rule states that the court may rule after a guilty plea if confession is validated. Article 162 ensures that silence or a plea doesn’t halt an investigation or evidence presentation. A series of articles, 165-166 mandates that witnesses attend and testify truthfully. Article 167 outlines structured rules for direct, cross, and re-direct examination, as well as protection of witnesses. According to Article 164, the court may call or recall any witness if deemed necessary for the trial.<br />
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====Charging instrument====<br />
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Rule 105 states that the Public Prosecutor initiates felony cases, while investigators handle misdemeanors they have investigated under Article 9. Rule 106 expands this authority, allowing investigators to initiate proceedings for any crime they are legally empowered to investigate and prosecute. Rule 107 confirms that the person who conducted the investigation and made the decision to proceed is responsible for carrying out the charge in court.<br />
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====Preliminary hearing====<br />
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Articles 144-145 of the Kuwait Criminal Code of Procedures, states that the court may remand or release the defendant based on factors of risk and evidence. Articles 148-149 allow summary resolution of misdemeanors through criminal orders. Article 168 permits judges to initiate specific investigative actions before trial.<br />
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====Pre-trial motions====<br />
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Article 146 of Kuwait’s CCP says that if the court identifies a fundamental defect in the proceedings or investigation, it may order the procedure to be nullified or corrected—unless the flaw caused no harm to justice or the parties. According to Article 147, ruling of inadmissibility due to procedural defect does not prevent the complainant from re-filing the case once legal requirements are met. Article 154 establishes that the accused or other litigants may file objections to the composition of the court or procedural violations, and the court must address and correct any formal defect that can be remedied. According to Article 163, the court must consider requests from the accused or other parties to hear witnesses or conduct investigations but may reject the request if it is clearly frivolous, malicious, or unnecessary. As part of trial proceedings, Article 169 permits the court to order any person to submit documents or physical evidence relevant to the case and may seize or preserve such materials as necessary. Articles 146-147 states that the court can correct or annul defective procedures if they affect fairness. Article 154 allows the defendant to object to court composition or procedural errors. Article 163 permits litigants to request investigations, however, courts can deny frivolous motions. Pursuant to Article 169, the court may compel parties to produce documents or physical evidence.<br />
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====Discovery====<br />
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Kuwait’s CCP Article 150 stipulates that when a case is tried summarily through a criminal order, the court must still conduct or delegate any necessary investigative procedures, following rules applicable to trial proceedings. Article 151 permits the court to form its judgment based on evidence from trial proceedings or pre-trial investigations but may not rely on the judge’s personal knowledge. Pre-trial investigation records can be included in the case file, not as primary proof, but to guide further investigative steps, interrogate witnesses, or support calling the investigator as a witness. If a judge who performed investigative actions is replaced, according to Article 153, the successor judge may rely on the previous findings unless those procedures are repeated at a party’s request. Article 154 allows the court to travel to inspect crime scenes, hear witnesses unable to attend, or conduct other investigations, or delegate these tasks to a judge or investigator under court-specified conditions. Article 169 allows the court to order any person to produce items or documents in their possession relevant to the case and may seize anything useful to the investigation or keep submitted materials until the case is resolved. Article 170 allows the court to appoint technical experts to provide reports, allow opposing experts to submit written opinions, and must appoint interpreters for non-Arabic-speaking defendants or witnesses, who are held to the same standard of honesty as expert witnesses. In the CCP, Articles 150-152 allows pre-trial investigation records to guide court inquiry but clarifies that it isn’t direct evidence. Article 153 permits successor judges to rely on earlier investigative records. Article 168 states that the court may conduct or delegate investigations such as scene inspection. Articles 169-170 states that the court may seize relevant materials and use experts or interpreters.<br />
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===Trial===<br />
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====Nature of the trial====<br />
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Kuwait’s CCP states that criminal cases are initiated by the public prosecutor or investigator and can only be heard under procedures established by law. An indictment must include full identification of the accused and plaintiff, details of the offense (acts, time, place, legal classification), and a list of evidence. Once the indictment is submitted, the court sets a hearing date, notifies the accused and relevant parties, and summons necessary witnesses. Article 132 makes it so that the court is not bound by the charge description in the indictment and may reclassify it based on findings. The prosecution may amend the indictment during trial, but the accused must be informed and allowed to prepare. If new facts arise that warrant changes in charges or defendants, the court may direct necessary amendments and ensure all investigative procedures are repeated as needed. If the court determines it is appropriate, Article 135 allows the court to refer a misdemeanor case to another competent court to ensure proper adjudication. Pursuant to Article 137, every trial session must be recorded by a clerk, including names of judges, litigants, statements, and procedural actions. Article 138 stipulates that the court president maintains courtroom order and may fine or imprison anyone who disrupts proceedings or disobeys the court. Immediate punishment may be imposed pursuant to Article 139 for offenses committed during trial, including perjury or assault on court officials. According to Article 140, if a new crime is discovered during trial, the court may investigate, arrest, or refer the accused for separate proceedings. Article 165 requires any person summoned as a witness to appear, swear an oath, and answer questions; refusal without excuse is punishable, and false statements are considered perjury. However, Article 166 says only witnesses over 14 who are mentally competent are sworn in; others may still be heard if the court finds their input valuable, using alternative communication as needed. Pursuant to Article 167, the court hears prosecution witnesses first, followed by cross-examination from the defense and civil parties, then hears defense witnesses under the same structure, while ensuring improper or intimidating questions are prohibited. Articles 129-131 and 136-141 are important to defining trial structure, public access, court records, and rights of attendance. Articles 132-134 allow the court to amend charges and give time to the defense to respond. Article 135 allows the referral of misdemeanor cases to appropriate courts. Articles 137-140 permits judges to enforce order and handle in-court offenses and new crimes. Regulating witness testimony, oath-taking, cross-examination, and protection are all described in Articles 165-167. Articles 171-172 establish guidelines for final arguments, civil claims, and issuance of verdicts.<br />
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====Defendant====<br />
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Articles 105-107 of Kuwait’s CCP describes how prosecutions are initiated against the defendant. Articles 118-121 explicitly provide specific rights afforded to the mentally ill, youth, and presence rules for trial. Articles 122-128 regulates fugitives, trials in absentia, and property seizures. The accused have the right to silence and protections against coercion and forced confessions pursuant to Articles 154-158. Articles 162-163 give the right to present and challenge evidence, as well as questioning witnesses. Finally, Articles 171-172 allow the right to respond last and to speak on sentencing factors.<br />
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====Lawyers====<br />
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CCP Articles 117 and 120-121 provide Kuwaitians the right to appoint counsel in felonies and optional counsel in misdemeanors. Articles 133-134 mandates that time be provided to prepare a defense and deliver closing arguments. Article 171 provides the right to submit a written defense and deliver closing arguments.<br />
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====Expert witnesses====<br />
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Rule 99 ensures witness testimony procedures are governed by law, ensuring fairness and equal rights for both prosecution and defense in presenting and examining witnesses. Rule 12 protects witnesses by outlawing torture and coercion to obtain the accused or witness statements. There are only two articles outlining procedures for expert witnesses. Article 100 states that investigators are allowed to ask experts opinions after being sworn in and Article 101 states that experts must submit their opinions in writing and litigants have to submit reports from other experts in an advisory capacity.<br />
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====Judges====<br />
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In Kuwait’s Criminal Code of Procedures, Articles 105-107 describe how prosecutions are initiated against the defendant. Articles 138-140 preside over decorum, punishing disruptions, and courtroom discipline. Article 151 grants the judge permission to weigh evidence independently but also prohibits the use of personal knowledge. Article 153 states that successor judges can rely on predecessor’s records unless procedures are repeated. Article 168 allows judges to inspect crime scenes or delegate investigative procedures. Consequently, Articles 169-170 allows judges to compel evidence production and appoint experts or interpreters.<br />
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====Victims and Civil Plaintiffs====<br />
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Articles 109-117 of Kuwait’s CCP states that victims may initiate cases, join proceedings, and claim damages. Article 165 stipulates that victims may be called as witnesses and are subject to witness rules. Last, Articles 171-172 allows civil claims to be heard alongside criminal cases and ruled upon in verdict.<br />
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===Sentencing===<br />
<br />
Article 173 of Kuwait’s CCP states that procedures for disqualifying or dismissing a judge follow the rules of the Civil and Commercial Liftings Act. Article 174 mandates that judges deliberate in secret and issue verdicts by majority; if there is no majority, junior judges must join one of the prevailing opinions. Article 175 requires that all judgments be written with reasons and include detailed case information, such as the names of judges, litigants, legal arguments, and a summary of proceedings. The draft verdict must be filed, and though copies are not immediately available, parties may inspect the draft until the final version is complete. Article 176 provides that the verdict must be read aloud in a public hearing by the presiding judge, with all involved judges present and their drafts signed within seven days. Article 177 requires the presiding judge and court clerk to sign the final judgment and store it in the case file within three days of filing the draft. Article 178 prohibits changing the verdict after it is pronounced, except for minor clerical corrections. Article 179 allows both the accused and plaintiff to receive official copies of the verdict free of charge, while other interested parties may request copies for a fee unless exempted by the judge. Article 180 instructs the court to resolve disputes over seized items or refer them to a civil court, with the option to order confiscation, return, or destruction. Article 181 delays execution of seizure orders until the appeal period ends, though items may be handed over immediately with or without a guarantee. Article 182 allows the court to order a good-faith buyer of stolen property to surrender equivalent seized funds from the convicted seller to cover restitution. Article 183 permits the court to place disputed property in custody during a trial and, if force was used in a crime, return it to the person from whom it was unlawfully taken. Articles 184 and 185 establish that a final verdict bars retrial for the same acts, but if new facts reveal a different crime not known to the court at the time, a new case may be filed.<br />
<br />
===Appeals===<br />
<br />
====Right to counsel====<br />
<br />
Article 202 of Kuwait’s CCP acknowledges and accommodates legal representation during appeals. The code states that the appeal petition must be signed by the appellant or on their behalf, implying representation by a lawyer is permitted and typical. It also allows detained individuals to appeal through the prison warden, recognizing counsel is not always accessible in custody but not excluding it.<br />
<br />
====Ineffective assistance of counsel====<br />
<br />
None of the articles explicitly recognize ineffective assistance of counsel as a ground for appeal.<br />
<br />
====Other grounds for appeal====<br />
<br />
Articles 199-211 outline other grounds for appeal. Article 199 permits appeals of all first-instance verdicts (convictions or acquittals) in misdemeanors or felonies. Article 200 allows appeals of civil rulings issued by criminal courts under the same grounds as civil court appeals. Article 200 bis expands appeal rights to the Supreme Court of Appeal for public prosecutors and civil parties in misdemeanor cases. Article 201 establishes a 20-day appeal deadline from the date of ruling or opposition. Article 203 requires that the appeal file be transferred to the competent court within 3 days, and that all parties be notified. Article 204 addresses how appeals proceed in case of absence of a party; if the appellant is absent, the court may treat the appeal as void. According to Article 206 appeals may be rejected for procedural or jurisdictional defects. By Article 207 if the appeal is valid, the court must hear arguments and may conduct further investigation or witness testimony. Article 208 allows the court to uphold the ruling or correct formal defects if the conviction itself is sound. Article 209 forces the court to annul the judgment if it finds an uncorrectable formal or legal defect or that it contradicts the law. Article 210 makes no opposition (i.e., objection) is allowed against appeal judgments. Article 211 makes all death penalty rulings automatically referred to the Supreme Court of Appeal for full review. Article 212 allows appeal of any procedural or investigative action taken by the police or courts, not subject to specific form or deadline (i.e., flexible complaints mechanism).<br />
<br />
====Collateral remedies (habeas etc…)====<br />
<br />
Article 212 is the closest analog to a collateral remedy, allowing appealing any action by police, investigators, or courts at any time during proceedings, and without adhering to formal deadlines. However, the court is not obligated to rule on such appeals, and silence is treated as implicit rejection.<br />
<br />
==Rights in prison==<br />
<br />
===Right to humane conditions of confinement===<br />
<br />
Regarding humane conditions in prison, Article 224 of Kuwait’s CCP establishes that no person may be held in prison without a proper detention or court order and also implies protection against arbitrary or unauthorized imprisonment. Article 225 requires a prisoner file and a central registry with admission and release details, supporting transparency and accountability in prison administration. Article 226 prohibits imprisonment in non-designated facilities, ensuring that detainees are held only in approved, regulated prisons.<br />
<br />
===Immigrant’s rights in detention===<br />
<br />
Kuwait’s CCP doesn’t outline direct protections or procedures specific to immigrant detainees.<br />
<br />
===Right to medical care in prison===<br />
<br />
Article 15 of the Constitution establishes a state-funded healthcare system that provides free treatment to Kuwaiti citizens. The Ministry of Health is responsible for ensuring prisoners’ legal right to receive necessary medical care, including access to a hospital within the prison and referrals to external hospitals. According to Advocates for Human Rights, it is unclear whether or not Kuwait permits prisoners to request and receive attention from an independent physician.<br />
<br />
===Right to mental health care===<br />
<br />
Kuwait’s CCP doesn’t explicitly guarantee mental health care in prison.<br />
<br />
===Restriction of rights===<br />
<br />
Although there are not many articles/ rules restricting rights of prisoners, the following can be interpreted as such: in Kuwait’s CCP, Article 219 allows the court to immediately enforce a prison sentence or detain a convicted person pending appeal, unless bail is granted and the person is not considered a flight risk. Article 226 mandates that imprisonment can only occur in officially designated facilities, restricting prisoners from being held elsewhere regardless of circumstance.<br />
<br />
===Rights of special populations===<br />
<br />
=====Women=====<br />
<br />
Rule 51 of the CCP specifies that when women are arrested they must also be searched, and according to Rule 82, this search must be conducted by a woman investigator. Article 218 mandates that a pregnant woman facing the death penalty who gives birth must have her sentence commuted to life imprisonment, and women with young children are also exempt from execution. Regarding inspection of homes, if there are veiled women in the space then the investigator ought to “take into account the traditions used in their treatment” and allow them to be detained or leave the dwelling.<br />
<br />
=====LGBT prisoners=====<br />
<br />
Kuwait’s CCP doesn’t provide rights for the LGBTQ+ population.<br />
<br />
=====Mentally ill prisoners=====<br />
<br />
Rule 118 of the CCP states that if a forensic doctor determines that the accused is mentally ill and unable to defend themselves, the court or investigator must pause the proceedings until the person regains capacity. However, if the court finds that the mental illness existed before or during the crime and rendered the accused not criminally responsible, it can issue a verdict without delay. The court may also acquit the accused if innocence is clear, even without a defense. In all cases, the court may order the accused to be placed in a mental health facility or released to a relative for care, and impose custody arrangements as it sees fit.<br />
<br />
=====Juveniles=====<br />
<br />
According to the Child Rights International Network, Kuwait abolished the death penalty for any offenses committed under the age of 18 in March 2017. This followed a package of policies that reformed the juvenile criminal justice system under Law No. 11 which issued the “Juvenile Law.” However, the Juvenile Law (2015/111/2016) set 16 as the upper age limit for juvenile court handling, therefore opening up many older children to longer sentencing as adults and life imprisonment. The CRI claims in Kuwait, children under the age of seven cannot be held criminally responsible. Children aged seven to 15 who commit unlawful acts may be subject to penalties under the Juvenile Act, including detention in an institution. By the provisions of Rule 109, any legal actions/ complaints involving children under 21 must be brought through their guardian or representative.<br />
<br />
==Sources==<br />
<br />
[https://www.cia.gov/the-world-factbook/countries/kuwait/ Kuwait | The World Factbook]<br />
[https://www.arabnews.com/node/2604584/middle-east Turkish President Discusses Israel-Iran Strikes with Oman’s Sultan, Kuwait’s Emir | Arab News] <br />
[https://www.arazzaqlaw.com/legal-system/ Legal System in Kuwait | Abdul Razzaq Abdullah & Partners]<br />
[https://www.state.gov/wp-content/uploads/2022/03/313615_KUWAIT-2021-HUMAN-RIGHTS-REPORT.pdf | Kuwait 2021 Human Rights Report | United States Department of State, p.6]<br />
[https://rightsinexile.org/legal-assistance-by-country/kuwait-legal-assistance/ Kuwait Legal Assistance | AsyLex]</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Kuwait&diff=381684Kuwait2025-08-22T15:54:20Z<p>IBJadmin: 1st iteration of Kuwait - written by Kylie, uploaded by Kevin</p>
<hr />
<div><br />
==Introduction==<br />
<br />
===Background===<br />
<br />
Kuwait is an Arabic-speaking state located in the Middle East, bordering the Persian Gulf, Iraq, and Saudi Arabia. Since the 18th century, Kuwait has been ruled by the AL-SABAH dynasty, however Ottoman invasion in 1899 led to the dynasty ceding foreign and defense responsibility to Britain until it gained independence in 1961. Iraq overran Kuwait in 1990, but a UN coalition led by the United States liberated Kuwait. In 1992, the parliament was reconstituted by the Amir. Among the Arab Spring protests (2010-2011) a stateless group known as the Bidoons staged demonstrations demanding equal citizenship, job opportunities, and benefits as Kuwaiti nationals. By the end of the protests, the prime minister resigned amid corruption allegations. In 2012, demonstrations resumed responding to an amendment in electoral law that lessened the voting power of tribal blocs. From 2012-2013, Sunni Islamists, tribal populists, and some liberals boycotted legislative elections, leading to a legislature more amenable to the government’s agenda. Oppositionists and independents won nearly half of the National Assembly seats and drove up political polarization. From 2006 to 2020, the National Assembly was dissolved seven times and the cabinet was shuffled over a dozen, mostly because of gridlock between the legislature and the government. However, the Amir, who assumed his role in 2020, launched a “National Dialogue” to resolve political stagnation. (Factbook) Today, Kuwait is known for being an oil-rich and wealthy desert state that has a high standard of living and well-developed infrastructure with a predominantly Muslim culture, with tradition a part of daily life. 30.4% of the population is Kuwaiti, 27.4% is from another Arab state, 40.3% is Asian, and 1% is African—with a majority of the population located in the Gulf region. As of June 2025, Kuwait’s government has been involved in discussing Israel-Iran strikes with the Turkish president and Oman’s sultan amidst heightened tensions over the Palestine-Israel conflict, in which Kuwait has pledged support for Palestine.<br />
<br />
===Type of system===<br />
<br />
Kuwait’s legal system is hybrid; consisting of English common law, French civil law, and Islamic Sharia law, and Egyptian law. Islamic law is present in personal matters (e.g., marriage, divorce, inheritance) but the Kuwaiti Constitution of 1962, which serves as the primary source of legislation, does provide for an independent judiciary. The state has not accepted the compulsory ICJ jurisdiction. The highest courts include the Constitutional Court, consisting of 5 judges, and the Supreme Court/ Court of Cassation, which is organized into circuits, each with 5 judges. Judges are selected by appointment from the Amir or recommendation of the Supreme Judicial Council (composed of judges and Ministry of Justice officials. Subordinate courts include the High Court of Appeal, Court of First Instance, and Summary Court.<br />
<br />
===Legal aid===<br />
<br />
====State-sponsored legal aid====<br />
<br />
Kuwait does not have a formal state-sponsored legal aid program.<br />
<br />
====NGOs providing pro bono legal aid====<br />
<br />
However, the Kuwait Bar Association is mandated by courts to appoint lawyers in criminal, civil, and commercial cases for indigent defendants. Non-governmental organizations that provide pro bono legal aid in Kuwait include Al-Twaijri & Partners, UNHCR Kuwait, Al-Arbash International Law Center, and Kuwait Humanitarian Centre.<br />
<br />
====Number of lawyers====<br />
<br />
As of 2015, there were 6,000 lawyers serving a population of 4.3 million people in Kuwait. Data on the total number of lawyers (by criminal/ civil) is not publicly available.<br />
<br />
===Sources of defendant’s rights?===<br />
<br />
====National sources of defendant’s rights====<br />
<br />
Defendant's rights are guaranteed by the Constitution of Kuwait (1962) which outlines the presumption of innocence, due process, the independent judiciary, and freedom from arbitrary detention. The Ministry of Justice regulations govern prosecution, court procedures, and legal aid appointments.<br />
<br />
====International sources of defendant’s rights====<br />
<br />
Kuwait is also subject to the International Covenant on Civil and Political Rights (ICCPR), including obligations of, respectively, independence and impartiality of judges, and the independence of prosecutors. Kuwait is also signatory to the Universal Declaration of Human Rights (UDHR), UN Convention Against Torture, Convention on the Rights of the Child, and Convention on the Elimination of Discrimination Against Women, among others.<br />
<br />
==Rights of the accused==<br />
<br />
===Right against unlawful arrests, searches, and seizures===<br />
<br />
Rule 63 of Kuwait’s CCP states that any arrest order must be written, dated, signed, and include the accused’s name, residence, and justification for arrest. The officer must notify the accused and inform them of the content of the warrant upon request. The warrant expires after three months if not executed and cannot be reissued without renewal. Rule 92 allows seizure only when necessary for investigation or trial, ensuring detentions are not used to justify arbitrary confiscation. Rule 94 mandates that legitimate owners can challenge seizures in court, ensuring a legal avenue to reclaim unlawfully held property. Rule 95 specifies that non-essential items must be returned, preventing indefinite or unnecessary possession of personal property. Rules 93-97 establish procedures for handling, storing, and returning seized property, guaranteeing that evidence is preserved under secure conditions and returned once it is no longer needed.<br />
<br />
===Right against unlawful detention===<br />
<br />
According to Rule 63, if a warrant isn’t executed within three months, it automatically lapses, safeguarding against outdated legal bases for detention. Upon arrest under a warrant, the accused must be presented to the investigator without delay and cannot be held more than 4 days without a written detention order. Rule 69 states pre-trial detention can start with up to 3 weeks based on the investigative authority’s decision. After that, only a judge can extend detention—and only in 15-day increments. If pre-trial detention occurs six months from the date of arrest, a court will hear the case at the request of an investigator and determine renewal of detention depending on the statements of the accused and facts of the case. This is a safeguard against indefinite detention without court review, ensuring regular judicial oversight.<br />
<br />
===Right not to be tortured or ill-treated===<br />
<br />
Article 34 of the Constitution mandates accused persons not suffer physical or moral harm, guaranteeing a freedom from punishment.<br />
<br />
===Right to medical care===<br />
<br />
Article 15 of the Constitution establishes a state-funded healthcare system that provides free treatment to Kuwaiti citizens. Although the CCP doesn’t guarantee medical care to the accused, the Ministry of the Interior has confirmed that detainees are administered an examination upon entry and those with injuries are provided medical attention.<br />
<br />
===Right to be informed of charges===<br />
<br />
In Kuwait’s CCP, the right to notice of charges is protected by Rule 63 which stipulates that anyone arrested must be informed of the charges against them, though the formal warrant may only be shown if the person explicitly requests it. Article 31 of the Constitution further ensures no person shall be arrested or detained without conformity to the law, requiring awareness of criminal allegations at the time of arrest. While authorities are required to provide notice of charges, the United States Department of States’ Human Rights report claims “defendants who did not speak or understand Arabic learned of the charges against them only after their trial began” because they didn’t have interpreters.<br />
<br />
===Right to presumption of innocence===<br />
<br />
Article 34 of the Kuwaiti Constitution asserts the principle of presumption of innocence until proven guilty in a legal trial “in which the necessary guarantees for the exercise of the right of defence are secured,” clarifying that in addition to the right to counsel, right to trial, a fair trial, right to present a defence, and laying the foundations for habeas corpus (ensuring due process), physical and moral injury on the accused is prohibited.<br />
<br />
===Standards of proof and conviction===<br />
<br />
While not explicitly spelling out “beyond reasonable doubt,” Kuwait’s adherence to the International Covenant on Civil and Political Rights (ICCPR) and Article 34 implies a high threshold: the prosecution must fully demonstrate guilt, with the defendant enjoying all rights to challenge the charges.<br />
<br />
===Right against self-incrimination===<br />
<br />
Rule 158 protects against self-incrimination, stating that an accused cannot be forced to testify and that silence cannot be interpreted as guilt.<br />
<br />
===Right to counsel and effective assistance===<br />
<br />
Rule 75 ensures that the accused attend all preliminary investigation procedures with a lawyer, although the lawyer cannot speak without permission of the investigator. Rule 120 of Kuwait’s CCP grants those accused with felony charges the right to counsel, assigning lawyers to the person if they don’t assign someone. Rule 98 provides the right to silence during interrogations, and that the accused can request that it be postponed until the presence of their lawyer. There are no rules guaranteeing effective assistance.<br />
<br />
===Right to a present a defense===<br />
<br />
The accused is presumed to be innocent and has the right to present a defense.<br />
<br />
===Right to due process===<br />
<br />
Kuwaiti’s CCP Rules and Articles 69 to 213 are dedicated to outlining the due process rights.<br />
<br />
===Right to equal protection of the laws===<br />
<br />
Article 29 of Kuwait’s Constitution grants people equal protection of the laws regardless of their identity and personal liberty.<br />
<br />
===Right to bail===<br />
<br />
Kuwait’s CCP grants the right to bail in Article 219.<br />
<br />
===Right against ex post facto prosecution===<br />
<br />
Article 32 of the Constitution prohibits ex post facto punishment: “no penalty may be imposed except for offences committed after the relevant law has come into force.”<br />
<br />
===Right against double jeopardy===<br />
<br />
Article 184 of the Kuwait CCP establishes double jeopardy, meaning that someone cannot be tried twice for the same crime after an acquittal or conviction. The International Covenant of Civil and Political Rights (ICCPR), which Kuwait is a state party to, prohibits prosecuting a person twice for the same alleged offense.<br />
<br />
===Legality principle===<br />
<br />
Article 1 of the Kuwaiti CCP establishes the legality principle, that no one can be punished for a crime unless that crime and its corresponding penalty are explicitly defined in law before the act was committed.”<br />
<br />
===Right to a fair trial===<br />
<br />
====Generally====<br />
<br />
Although the Constitution doesn’t mention the right to a “fair trial,” CCP Rule 158 protects the accused from compelled testimony, prohibiting forcing him to answer or make certain statements and stipulating that silence or failure to answer does not mean that he acknowledged something. However, the court is encouraged to draw from the defendant’s failure to answer or incorrect answer in their conclusion. Rule 157 of the CCP deems confessions that are forced or unclear statements inadmissible evidence. Lastly, Rule 159 reinforces that any confession obtained through torture coercion is inadmissible evidence.<br />
<br />
====Right to a trial by jury====<br />
<br />
Kuwaitans do not have the right to trial by jury. Article 165 asserts that all trials are to be public—except otherwise prescribed by law (e.g., maintenance of public order, preservation of public morals).<br />
<br />
====Right to a speedy trial====<br />
<br />
While the Constitution doesn’t specify a precise timeline, Rule 63 of Kuwait’s CCP ensures the right to a speedy trial by making arrest warrants expire after three months if not executed. Rules 60, 69, and 227 collectively promote a speedy trial by requiring that the accused be brought before an investigator within 48 hours of arrest, mandating that public prosecutors complete investigations within a set timeframe when the accused is detained or else submit the matter for judicial review, and obligating appellate courts to issue decisions within eight days of hearing the appeal. Kuwait is also party to the International Covenant on Civil and Political Rights which promotes a speedy trial as a fundamental human right to be upheld, for juveniles especially.<br />
<br />
====Right to an impartial judge====<br />
<br />
Article 162 asserts that judges must have integrity and be impartial. Further, Article 163 requires that judges be independent when administering justice, prohibiting interference in trial verdicts.<br />
<br />
===Right to language interpretation===<br />
<br />
Rule 170 of the CCP ensures that “If the accused or one of the witnesses is not familiar with Arabic, the court should use an interpreter to understand the accused’s statements and what is going on in the hearing and apply to the translators the judgments of the experts.” However, The Advocates for Human Rights have reported that accused, particularly foreign nationals, facing state security charges are routinely denied access to their lawyers and language interpreters.<br />
<br />
===Right to habeas corpus===<br />
<br />
A variety of provisions in Kuwait’s constitution function as a habeas corpus safeguard. Article 31 prohibits arrest, imprisonment, or restriction of liberty except in accordance with the law, this article embodies the core of habeas corpus—ensuring detention is lawful and subject to legal procedure. Article 32 reinforces the principle that no one can be detained or punished without a defined legal basis, aligning with habeas corpus by preventing imprisonment under vague or retroactive laws. Last, Article 34 ensures that all accused persons are presumed innocent and guaranteed the right to a legal defense, allowing them to contest the legality of their detention in court.<br />
<br />
===Capital punishment===<br />
<br />
Kuwait’s CCP legalizes capital punishment. Death sentences must be reviewed by the Court of Cassation and the Amir.<br />
<br />
===Right to appeal===<br />
<br />
The right to appeal is established in the Rules 199-213, which outline the framework for appealing convictions and sentences, specifying the hierarchy and types of courts (e.g., from the Court of First Instance, to the Court of Appeal, and ultimately the Court of Cassation), as well as procedural deadlines and grounds for appeal. Article 8 of the CCP grants the right to appeal decisions issued by criminal courts to the defendant and the Public Prosecutor.<br />
<br />
==Rights of Counsel==<br />
<br />
===Right to provide representation===<br />
<br />
In Kuwait, the right to counsel is protected both constitutionally and through provisions in the Code of Criminal Procedure. Article 34 of the Constitution guarantees that an accused person is presumed innocent until proven guilty in a legal trial that provides the necessary safeguards to exercise the right of defense.<br />
<br />
===Right of access to the client/ information===<br />
<br />
This foundational right is reinforced in the CCP, particularly in Rule 75, which allows both the accused and the victim to attend all preliminary investigation procedures with their lawyers present. Although the lawyer may not speak without the investigator’s permission, the presence of counsel is ensured, especially when the accused is in custody. Rule 98 further protects the accused’s rights during interrogation, allowing them to remain silent or request that questioning be delayed until their lawyer is present. It also grants the accused the right to challenge prosecution witnesses, call defense witnesses, and document all defenses and procedural requests in the official record.<br />
<br />
===Right to confidential communication with the client===<br />
<br />
Kuwait provides protections for accessing legal counsel but falls short of guaranteeing confidential, privileged communication between the accused and their lawyer throughout the criminal process.<br />
<br />
==Means of protecting or enforcing rights==<br />
<br />
===Exclusionary rule===<br />
<br />
Kuwaiti criminal procedure law does not formally adopt an “exclusionary rule” by name, but it clearly prohibits the use of illegally obtained evidence, particularly confessions extracted through coercion or torture. Rule 159 explicitly states that confessions obtained under such conditions are inadmissible in court.<br />
<br />
===Nullity of Procedure===<br />
<br />
There is no explicit “nullity of procedure” rule in the CCP, instead, Kuwait offers various procedural checks and judicial supervision (e.g., detention review, appeal deadlines, defense rights) that can invalidate improperly conducted legal actions in practice. Where violations occur, they can be challenged through appeals or petitions under existing rules, creating a de facto remedy for procedural irregularities.<br />
<br />
===Motions===<br />
<br />
Although the CCP lacks articles mentioning motions, it includes important procedural mechanisms to safeguard civil rights. Rule 154 allows formal objections to be raised regarding court composition or procedural defects and Rule 158 allows the accused to object to coercive questioning and refuse to testify (a defensive motion to protect rights.) More broadly, the appeal procedures listed in Articles 199-213 of the CCP allow post-conviction motions to challenge judicial errors, procedural irregularities, or misapplication of law.<br />
<br />
===Contempt===<br />
<br />
So, while Kuwait does criminalize disrespect toward courts, there is no procedural rule in the criminal procedure code granting courts in-process contempt powers. According to Amnesty International, Article 147 of the Penal Code states anyone who “shows disrespect to a judge in a way that calls into question his integrity or his interest in his work or in his commitment to the provisions of law” may be punished by up to two years’ imprisonment and a fine, with the caveat that “honest criticism, in good faith” is exempt.<br />
<br />
===Civil actions===<br />
<br />
Kuwait’s Constitution ensures that citizens can employ civil action to protect their rights. Article 36 ensures the freedom of opinion, scientific research, verbal and written expression, “in accordance with the conditions and procedures specified by law.” Article 37 establishes the freedom of the “press, printing, and publishing… in accordance with the conditions and manner specified by law.” According to Article 44, individuals have the right of assembly; while private meetings are unregulated, public meetings and demonstrations must be peaceful, “in accordance with the conditions and manner specified by law,” and “not contrary to morals.” Last, Article 45 gives every individual the right to address public authorities in writing, or petition; however, only constituted organizations and corporations have the right to petition collectively.<br />
<br />
==Pre trial procedures==<br />
<br />
===Police procedures===<br />
<br />
====Complaint/information====<br />
<br />
In Kuwait, criminal complaints can be filed at police stations and through the Public Prosecutor's office.<br />
<br />
====Arrest, search, and seizure Laws====<br />
<br />
=====Stops and frisks/ searches=====<br />
<br />
Kuwait’s Constitution and Code of Criminal Procedure No. 17/1960 (CCP) outlines legally prohibited searches, search warrants, purpose/ scope of searches, and incidental findings. Rule 80 of the Kuwaiti CCP, people’s homes and messages may be searched “with the investigator’s knowledge, consent, or order when there is no other means to obtain objects used in the crime.” Rule 81 of the CCP establishes that searches should be “for the purpose of finding objects or traces of the crime or necessary evidence,” which may require the arrest of the searched, “within the force limitations described in Article 49.” Then, in the CCP’s Rule 89, the person conducting the search should only look for the objects or traces permitted by the issued warrant, but if “objects deemed a crime or objects connected with another crime” are found, they can be seized and recorded in a report.<br />
<br />
=====Arrests=====<br />
<br />
According to the Constitution’s Article 31, “no person shall be arrested, detained, searched, or compelled to reside in a specified place, nor shall the residence of any person or his liberty to choose his place of residence or his liberty of movement be restricted, except in accordance with the provisions of the law.” and no one “shall be subjected to torture or to degrading treatment.”<br />
<br />
=====Pre-trial detention=====<br />
<br />
Pre-trial detention is addressed in § 3.2.3.4 of the CCP, including Rules 69-74. Under Rule 69, initial detention is capped at three weeks and can only be renewed in 15-day increments by a judge. Rule 70 further restricts detention beyond six months, requiring a court order based on a review of the investigation and after hearing the accused.<br />
<br />
=====Searches=====<br />
<br />
Additionally, Rules 72–74 provide mechanisms for conditional release at any time if detention is no longer necessary, including guarantees such as bail or written undertakings to ensure the accused’s future appearance. According to the CCP, an individual may not be held in custody for more than four days without a written order from the investigator in felony cases, in misdemeanor cases, detention is limited to 48 hours without a written order, and detention can be extended in felony cases for up to 80 days, and in misdemeanor cases for up to 40 days, subject to judicial review.<br />
<br />
=====Exceptions=====<br />
<br />
Note, Article 111 of the Constitution provides immunity to members of the National Assembly to searches, arrest, detention, and other penal measures while in session.<br />
<br />
=====Enforcing the rules=====<br />
<br />
Kuwaiti criminal procedure law does not formally adopt an “exclusionary rule” by name, but it clearly prohibits the use of illegally obtained evidence, particularly confessions extracted through coercion or torture. Rule 159 explicitly states that confessions obtained under such conditions are inadmissible in court. Rule 157 further reinforces that only voluntary, clear, and conscious confessions may be used as evidence. Additionally, procedural fairness is upheld through Rule 154, which allows the accused to challenge the validity of trial procedures and seek remedies for formal errors. Finally, Rule 151 and 152 restrict judges from relying on personal knowledge or improperly documented pretrial materials, requiring that verdicts be based solely on legally obtained and properly presented evidence. Collectively, these provisions ensure that unlawfully acquired evidence is excluded and what pieces of evidence will be considered null.<br />
<br />
====Lineups and other identification procedures====<br />
<br />
=====Lineups=====<br />
<br />
The CCP doesn’t mention lineups or identification procedures.<br />
<br />
=====Other identification procedures=====<br />
<br />
However, Kuwait enacted Law No. 78/2015 allowing authorities to collect and use DNA evidence in criminal investigations.<br />
<br />
====Interrogation====<br />
<br />
=====Before formal charge in court=====<br />
<br />
Under Rule 98 of the CCP, the accused must be questioned orally by the investigator before the start of a preliminary investigation. The accused has the right to remain silent, to postpone the interrogation until their lawyer is present, and to refuse to sign statements. Confessions, if made, must be recorded in detail and signed by the accused, ensuring voluntariness. Importantly, the use of coercion, threats, or inducement is strictly prohibited. The accused also has the right during the investigation to present a defense, respond to the prosecution’s evidence, and request witnesses or additional investigative actions.<br />
<br />
=====After defendant is formally charged=====<br />
<br />
Following formal charges and during trial, Rule 162 governs the procedure. If the accused pleads guilty or remains silent, the court must still conduct a full evidentiary investigation, including the hearing of witnesses and experts. The prosecution presents its case first, followed by the defense’s opportunity to present exculpatory evidence. The court retains discretion to question the accused again after the witness testimonies or at another time, as necessary for clarifying the facts and protecting the accused’s right to a defense.<br />
<br />
=====Enforcing the rules=====<br />
<br />
Both Rule 98 and Rule 162 serve to protect the accused from unlawful interrogation. Rule 98 explicitly prohibits any form of coercion or manipulation and affirms the accused’s right to silence and counsel. It also ensures that the defense can be actively documented during the investigation. Rule 162 reinforces that even a guilty plea or silence cannot substitute for a full evidentiary review, ensuring that the court independently assesses the facts.<br />
<br />
==Court procedures==<br />
<br />
===Pre-trial===<br />
<br />
====Initial court appearance====<br />
<br />
Regarding initial court appearances, pursuant to Article 131 of Kuwait’s Criminal Code of Procedures, the summons and trial date is scheduled by the court. According to Article 155 the court reads charges and requests a plea from the accused. The following rule states that the court may rule after a guilty plea if confession is validated. Article 162 ensures that silence or a plea doesn’t halt an investigation or evidence presentation. A series of articles, 165-166 mandates that witnesses attend and testify truthfully. Article 167 outlines structured rules for direct, cross, and re-direct examination, as well as protection of witnesses. According to Article 164, the court may call or recall any witness if deemed necessary for the trial.<br />
<br />
====Charging instrument====<br />
<br />
Rule 105 states that the Public Prosecutor initiates felony cases, while investigators handle misdemeanors they have investigated under Article 9. Rule 106 expands this authority, allowing investigators to initiate proceedings for any crime they are legally empowered to investigate and prosecute. Rule 107 confirms that the person who conducted the investigation and made the decision to proceed is responsible for carrying out the charge in court.<br />
<br />
====Preliminary hearing====<br />
<br />
Articles 144-145 of the Kuwait Criminal Code of Procedures, states that the court may remand or release the defendant based on factors of risk and evidence. Articles 148-149 allow summary resolution of misdemeanors through criminal orders. Article 168 permits judges to initiate specific investigative actions before trial.<br />
<br />
====Pre-trial motions====<br />
<br />
Article 146 of Kuwait’s CCP says that if the court identifies a fundamental defect in the proceedings or investigation, it may order the procedure to be nullified or corrected—unless the flaw caused no harm to justice or the parties. According to Article 147, ruling of inadmissibility due to procedural defect does not prevent the complainant from re-filing the case once legal requirements are met. Article 154 establishes that the accused or other litigants may file objections to the composition of the court or procedural violations, and the court must address and correct any formal defect that can be remedied. According to Article 163, the court must consider requests from the accused or other parties to hear witnesses or conduct investigations but may reject the request if it is clearly frivolous, malicious, or unnecessary. As part of trial proceedings, Article 169 permits the court to order any person to submit documents or physical evidence relevant to the case and may seize or preserve such materials as necessary. Articles 146-147 states that the court can correct or annul defective procedures if they affect fairness. Article 154 allows the defendant to object to court composition or procedural errors. Article 163 permits litigants to request investigations, however, courts can deny frivolous motions. Pursuant to Article 169, the court may compel parties to produce documents or physical evidence.<br />
<br />
====Discovery====<br />
<br />
Kuwait’s CCP Article 150 stipulates that when a case is tried summarily through a criminal order, the court must still conduct or delegate any necessary investigative procedures, following rules applicable to trial proceedings. Article 151 permits the court to form its judgment based on evidence from trial proceedings or pre-trial investigations but may not rely on the judge’s personal knowledge. Pre-trial investigation records can be included in the case file, not as primary proof, but to guide further investigative steps, interrogate witnesses, or support calling the investigator as a witness. If a judge who performed investigative actions is replaced, according to Article 153, the successor judge may rely on the previous findings unless those procedures are repeated at a party’s request. Article 154 allows the court to travel to inspect crime scenes, hear witnesses unable to attend, or conduct other investigations, or delegate these tasks to a judge or investigator under court-specified conditions. Article 169 allows the court to order any person to produce items or documents in their possession relevant to the case and may seize anything useful to the investigation or keep submitted materials until the case is resolved. Article 170 allows the court to appoint technical experts to provide reports, allow opposing experts to submit written opinions, and must appoint interpreters for non-Arabic-speaking defendants or witnesses, who are held to the same standard of honesty as expert witnesses. In the CCP, Articles 150-152 allows pre-trial investigation records to guide court inquiry but clarifies that it isn’t direct evidence. Article 153 permits successor judges to rely on earlier investigative records. Article 168 states that the court may conduct or delegate investigations such as scene inspection. Articles 169-170 states that the court may seize relevant materials and use experts or interpreters.<br />
<br />
===Trial===<br />
<br />
====Nature of the trial====<br />
<br />
Kuwait’s CCP states that criminal cases are initiated by the public prosecutor or investigator and can only be heard under procedures established by law. An indictment must include full identification of the accused and plaintiff, details of the offense (acts, time, place, legal classification), and a list of evidence. Once the indictment is submitted, the court sets a hearing date, notifies the accused and relevant parties, and summons necessary witnesses. Article 132 makes it so that the court is not bound by the charge description in the indictment and may reclassify it based on findings. The prosecution may amend the indictment during trial, but the accused must be informed and allowed to prepare. If new facts arise that warrant changes in charges or defendants, the court may direct necessary amendments and ensure all investigative procedures are repeated as needed. If the court determines it is appropriate, Article 135 allows the court to refer a misdemeanor case to another competent court to ensure proper adjudication. Pursuant to Article 137, every trial session must be recorded by a clerk, including names of judges, litigants, statements, and procedural actions. Article 138 stipulates that the court president maintains courtroom order and may fine or imprison anyone who disrupts proceedings or disobeys the court. Immediate punishment may be imposed pursuant to Article 139 for offenses committed during trial, including perjury or assault on court officials. According to Article 140, if a new crime is discovered during trial, the court may investigate, arrest, or refer the accused for separate proceedings. Article 165 requires any person summoned as a witness to appear, swear an oath, and answer questions; refusal without excuse is punishable, and false statements are considered perjury. However, Article 166 says only witnesses over 14 who are mentally competent are sworn in; others may still be heard if the court finds their input valuable, using alternative communication as needed. Pursuant to Article 167, the court hears prosecution witnesses first, followed by cross-examination from the defense and civil parties, then hears defense witnesses under the same structure, while ensuring improper or intimidating questions are prohibited. Articles 129-131 and 136-141 are important to defining trial structure, public access, court records, and rights of attendance. Articles 132-134 allow the court to amend charges and give time to the defense to respond. Article 135 allows the referral of misdemeanor cases to appropriate courts. Articles 137-140 permits judges to enforce order and handle in-court offenses and new crimes. Regulating witness testimony, oath-taking, cross-examination, and protection are all described in Articles 165-167. Articles 171-172 establish guidelines for final arguments, civil claims, and issuance of verdicts.<br />
<br />
====Defendant====<br />
<br />
Articles 105-107 of Kuwait’s CCP describes how prosecutions are initiated against the defendant. Articles 118-121 explicitly provide specific rights afforded to the mentally ill, youth, and presence rules for trial. Articles 122-128 regulates fugitives, trials in absentia, and property seizures. The accused have the right to silence and protections against coercion and forced confessions pursuant to Articles 154-158. Articles 162-163 give the right to present and challenge evidence, as well as questioning witnesses. Finally, Articles 171-172 allow the right to respond last and to speak on sentencing factors.<br />
<br />
====Lawyers====<br />
<br />
CCP Articles 117 and 120-121 provide Kuwaitians the right to appoint counsel in felonies and optional counsel in misdemeanors. Articles 133-134 mandates that time be provided to prepare a defense and deliver closing arguments. Article 171 provides the right to submit a written defense and deliver closing arguments.<br />
<br />
====Expert witnesses====<br />
<br />
Rule 99 ensures witness testimony procedures are governed by law, ensuring fairness and equal rights for both prosecution and defense in presenting and examining witnesses. Rule 12 protects witnesses by outlawing torture and coercion to obtain the accused or witness statements. There are only two articles outlining procedures for expert witnesses. Article 100 states that investigators are allowed to ask experts opinions after being sworn in and Article 101 states that experts must submit their opinions in writing and litigants have to submit reports from other experts in an advisory capacity.<br />
<br />
====Judges====<br />
<br />
In Kuwait’s Criminal Code of Procedures, Articles 105-107 describe how prosecutions are initiated against the defendant. Articles 138-140 preside over decorum, punishing disruptions, and courtroom discipline. Article 151 grants the judge permission to weigh evidence independently but also prohibits the use of personal knowledge. Article 153 states that successor judges can rely on predecessor’s records unless procedures are repeated. Article 168 allows judges to inspect crime scenes or delegate investigative procedures. Consequently, Articles 169-170 allows judges to compel evidence production and appoint experts or interpreters.<br />
<br />
====Victims and Civil Plaintiffs====<br />
<br />
Articles 109-117 of Kuwait’s CCP states that victims may initiate cases, join proceedings, and claim damages. Article 165 stipulates that victims may be called as witnesses and are subject to witness rules. Last, Articles 171-172 allows civil claims to be heard alongside criminal cases and ruled upon in verdict.<br />
<br />
===Sentencing===<br />
<br />
Article 173 of Kuwait’s CCP states that procedures for disqualifying or dismissing a judge follow the rules of the Civil and Commercial Liftings Act. Article 174 mandates that judges deliberate in secret and issue verdicts by majority; if there is no majority, junior judges must join one of the prevailing opinions. Article 175 requires that all judgments be written with reasons and include detailed case information, such as the names of judges, litigants, legal arguments, and a summary of proceedings. The draft verdict must be filed, and though copies are not immediately available, parties may inspect the draft until the final version is complete. Article 176 provides that the verdict must be read aloud in a public hearing by the presiding judge, with all involved judges present and their drafts signed within seven days. Article 177 requires the presiding judge and court clerk to sign the final judgment and store it in the case file within three days of filing the draft. Article 178 prohibits changing the verdict after it is pronounced, except for minor clerical corrections. Article 179 allows both the accused and plaintiff to receive official copies of the verdict free of charge, while other interested parties may request copies for a fee unless exempted by the judge. Article 180 instructs the court to resolve disputes over seized items or refer them to a civil court, with the option to order confiscation, return, or destruction. Article 181 delays execution of seizure orders until the appeal period ends, though items may be handed over immediately with or without a guarantee. Article 182 allows the court to order a good-faith buyer of stolen property to surrender equivalent seized funds from the convicted seller to cover restitution. Article 183 permits the court to place disputed property in custody during a trial and, if force was used in a crime, return it to the person from whom it was unlawfully taken. Articles 184 and 185 establish that a final verdict bars retrial for the same acts, but if new facts reveal a different crime not known to the court at the time, a new case may be filed.<br />
<br />
===Appeals===<br />
<br />
====Right to counsel====<br />
<br />
Article 202 of Kuwait’s CCP acknowledges and accommodates legal representation during appeals. The code states that the appeal petition must be signed by the appellant or on their behalf, implying representation by a lawyer is permitted and typical. It also allows detained individuals to appeal through the prison warden, recognizing counsel is not always accessible in custody but not excluding it.<br />
<br />
====Ineffective assistance of counsel====<br />
<br />
None of the articles explicitly recognize ineffective assistance of counsel as a ground for appeal.<br />
<br />
====Other grounds for appeal====<br />
<br />
Articles 199-211 outline other grounds for appeal. Article 199 permits appeals of all first-instance verdicts (convictions or acquittals) in misdemeanors or felonies. Article 200 allows appeals of civil rulings issued by criminal courts under the same grounds as civil court appeals. Article 200 bis expands appeal rights to the Supreme Court of Appeal for public prosecutors and civil parties in misdemeanor cases. Article 201 establishes a 20-day appeal deadline from the date of ruling or opposition. Article 203 requires that the appeal file be transferred to the competent court within 3 days, and that all parties be notified. Article 204 addresses how appeals proceed in case of absence of a party; if the appellant is absent, the court may treat the appeal as void. According to Article 206 appeals may be rejected for procedural or jurisdictional defects. By Article 207 if the appeal is valid, the court must hear arguments and may conduct further investigation or witness testimony. Article 208 allows the court to uphold the ruling or correct formal defects if the conviction itself is sound. Article 209 forces the court to annul the judgment if it finds an uncorrectable formal or legal defect or that it contradicts the law. Article 210 makes no opposition (i.e., objection) is allowed against appeal judgments. Article 211 makes all death penalty rulings automatically referred to the Supreme Court of Appeal for full review. Article 212 allows appeal of any procedural or investigative action taken by the police or courts, not subject to specific form or deadline (i.e., flexible complaints mechanism).<br />
<br />
====Collateral remedies (habeas etc…)====<br />
<br />
Article 212 is the closest analog to a collateral remedy, allowing appealing any action by police, investigators, or courts at any time during proceedings, and without adhering to formal deadlines. However, the court is not obligated to rule on such appeals, and silence is treated as implicit rejection.<br />
<br />
==Rights in prison==<br />
<br />
===Right to humane conditions of confinement===<br />
<br />
Regarding humane conditions in prison, Article 224 of Kuwait’s CCP establishes that no person may be held in prison without a proper detention or court order and also implies protection against arbitrary or unauthorized imprisonment. Article 225 requires a prisoner file and a central registry with admission and release details, supporting transparency and accountability in prison administration. Article 226 prohibits imprisonment in non-designated facilities, ensuring that detainees are held only in approved, regulated prisons.<br />
<br />
===Immigrant’s rights in detention===<br />
<br />
Kuwait’s CCP doesn’t outline direct protections or procedures specific to immigrant detainees.<br />
<br />
===Right to medical care in prison===<br />
<br />
Article 15 of the Constitution establishes a state-funded healthcare system that provides free treatment to Kuwaiti citizens. The Ministry of Health is responsible for ensuring prisoners’ legal right to receive necessary medical care, including access to a hospital within the prison and referrals to external hospitals. According to Advocates for Human Rights, it is unclear whether or not Kuwait permits prisoners to request and receive attention from an independent physician.<br />
<br />
===Right to mental health care===<br />
<br />
Kuwait’s CCP doesn’t explicitly guarantee mental health care in prison.<br />
<br />
===Restriction of rights===<br />
<br />
Although there are not many articles/ rules restricting rights of prisoners, the following can be interpreted as such: in Kuwait’s CCP, Article 219 allows the court to immediately enforce a prison sentence or detain a convicted person pending appeal, unless bail is granted and the person is not considered a flight risk. Article 226 mandates that imprisonment can only occur in officially designated facilities, restricting prisoners from being held elsewhere regardless of circumstance.<br />
<br />
===Rights of special populations===<br />
<br />
=====Women=====<br />
<br />
Rule 51 of the CCP specifies that when women are arrested they must also be searched, and according to Rule 82, this search must be conducted by a woman investigator. Article 218 mandates that a pregnant woman facing the death penalty who gives birth must have her sentence commuted to life imprisonment, and women with young children are also exempt from execution. Regarding inspection of homes, if there are veiled women in the space then the investigator ought to “take into account the traditions used in their treatment” and allow them to be detained or leave the dwelling.<br />
<br />
=====LGBT prisoners=====<br />
<br />
Kuwait’s CCP doesn’t provide rights for the LGBTQ+ population.<br />
<br />
=====Mentally ill prisoners=====<br />
<br />
Rule 118 of the CCP states that if a forensic doctor determines that the accused is mentally ill and unable to defend themselves, the court or investigator must pause the proceedings until the person regains capacity. However, if the court finds that the mental illness existed before or during the crime and rendered the accused not criminally responsible, it can issue a verdict without delay. The court may also acquit the accused if innocence is clear, even without a defense. In all cases, the court may order the accused to be placed in a mental health facility or released to a relative for care, and impose custody arrangements as it sees fit.<br />
<br />
=====Juveniles=====<br />
<br />
According to the Child Rights International Network, Kuwait abolished the death penalty for any offenses committed under the age of 18 in March 2017. This followed a package of policies that reformed the juvenile criminal justice system under Law No. 11 which issued the “Juvenile Law.” However, the Juvenile Law (2015/111/2016) set 16 as the upper age limit for juvenile court handling, therefore opening up many older children to longer sentencing as adults and life imprisonment. The CRI claims in Kuwait, children under the age of seven cannot be held criminally responsible. Children aged seven to 15 who commit unlawful acts may be subject to penalties under the Juvenile Act, including detention in an institution. By the provisions of Rule 109, any legal actions/ complaints involving children under 21 must be brought through their guardian or representative.<br />
<br />
==Sources==<br />
<br />
[https://www.cia.gov/the-world-factbook/countries/kuwait/ Kuwait | The World Factbook]<br />
[https://www.arabnews.com/node/2604584/middle-east Turkish President Discusses Israel-Iran Strikes with Oman’s Sultan, Kuwait’s Emir | Arab News] <br />
[https://www.arazzaqlaw.com/legal-system/ Legal System in Kuwait | Abdul Razzaq Abdullah & Partners]<br />
[https://www.state.gov/wp-content/uploads/2022/03/313615_KUWAIT-2021-HUMAN-RIGHTS-REPORT.pdf | Kuwait 2021 Human Rights Report | United States Department of State, p.6]<br />
[https://rightsinexile.org/legal-assistance-by-country/kuwait-legal-assistance/ Kuwait Legal Assistance | AsyLex]</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Criminal_Justice_Systems_Around_the_World&diff=381683Criminal Justice Systems Around the World2025-08-22T15:12:55Z<p>IBJadmin: /* Country Pages */</p>
<hr />
<div>Criminal justice systems can be loosely classified as either common, civil, Islamic or socialist law in nature. However, today many jurisdictions have adopted hybrid models that combine elements of various legal systems. Many of these systems share a common set of [[Core Values | core values]]. In addition, most criminal justice systems have adopted a [[Legality Principle | legality principle]]. Almost every criminal justice system is made of of similar [[Actors in the Criminal Justice System | actors]].<br />
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See [[Legal Aid Systems and Supporting NGOs around the world]]</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Korea,_North&diff=381682Korea, North2025-08-22T14:51:37Z<p>IBJadmin: 1st iteration of North Korea - written by Intisar, uploaded by Kevin</p>
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<br />
{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;"> Legal Resources for North Korea </h2><br />
• Constitution of the Democratic People's Republic of Korea <ref>https://www.hrnk.org/wp-content/uploads/pdfs/nkhr-resource-center/DPRK_Constitution.pdf<br />
</ref><br />
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<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources </h2> <br />
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• [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Introduction==<br />
<br />
===Quick summary of the context (including the country’s recent history)===<br />
<br />
North Korea, officially known as the Democratic People’s Republic of Korea (DPRK), is a highly centralized socialist state located on the northern half of the Korean Peninsula, bordering China, Russia, and South Korea. With a population of approximately 25 million, North Korea is known for its mountainous terrain and largely state-controlled economy, historically centered around heavy industry and military production. The Korean Peninsula was under Japanese colonial rule from 1910 until Japan’s defeat in World War II in 1945. Following the war, the peninsula was divided along the 38th parallel into Soviet-occupied North Korea and U.S.-occupied South Korea. The DPRK was officially established in 1948 under Kim Il-sung, whose authoritarian rule laid the foundation for a dynastic system of leadership, continued by his son Kim Jong-il and grandson Kim Jong-un. The Korean War (1950–1953) ended in an armistice, not a peace treaty, leaving the two Koreas technically still at war. North Korea operates under a socialist constitution that has been amended several times, most recently in 2019, emphasizing the supremacy of the ruling Workers’ Party of Korea, the centrality of the Kim family, and the state’s commitment to “self-reliance” (Juche). Administratively, the country is divided into nine provinces and several special cities.<br />
<br />
https://www.britannica.com/place/North-Korea<br />
<br />
===Type of system (common law; civil law; hybrid)===<br />
<br />
North Korea’s legal system is based on a civil law framework derived from German legal codes, shaped further by Japanese colonial influence and Communist legal theory. The system does not permit judicial review of legislative acts, meaning courts have no authority to challenge or overturn laws passed by the state. Additionally, North Korea has not accepted the jurisdiction of the International Court of Justice, reflecting its broader rejection of external legal oversight and its emphasis on national sovereignty.<br />
<br />
===The legal aid situation in the country:===<br />
<br />
====State Sponsored legal aid====<br />
<br />
In North Korea, legal aid is provided by the state as part of its centralized justice system. Defense counsel is assigned through government channels, and there is no publicly available evidence of a separate or independent legal aid sector. Legal representatives operate within a system overseen by state authorities, and their functions are integrated into the broader administrative structure of the judiciary. In cases involving political or national security charges, legal proceedings are generally closed to external scrutiny, and judicial review or formal appeals processes are not publicly documented.<br />
<br />
====If no State Sponsored Legal aid exist, mention existing NGOs providing pro bono legal aid====<br />
<br />
None are known to be practicing from within North Korea; however, there are numerous NGOs based outside the country that provide legal support to North Korean refugees. These include Liberty in North Korea (LiNK), which facilitates safe passage and resettlement; PSCORE (People for Successful Corean Reunification), which offers legal education and documentation assistance in South Korea; HanVoice in Canada, which supports refugee claims and legal advocacy; the Database Center for North Korean Human Rights (NKDB), which provides legal counseling and documentation for defectors; Korea Future Initiative, which supports legal accountability through international mechanisms; and the Refugee Rights Network Korea (RRNK), which delivers legal and resettlement services for asylum seekers and refugees, including North Koreans.<br />
<br />
Sources:<br />
Liberty in North Korea (LiNK) - https://libertyinnorthkorea.org<br />
<br />
PSCORE (People for Successful Corean Reunification) - http://pscore.org<br />
<br />
HanVoice - https://www.hanvoice.ca<br />
<br />
Database Center for North Korean Human Rights (NKDB) - https://en.nkdb.org<br />
<br />
Korea Future Initiative - https://www.koreafuture.org<br />
<br />
Refugee Rights Network Korea (RRNK) - https://www.refugeerights.or.kr<br />
<br />
====Number of lawyers (criminal/civil) if known====<br />
<br />
Publicly available data on the number of practicing lawyers in North Korea is limited, and official statistics are not regularly released. The legal profession in North Korea is state-managed, and lawyers operate under the direction of the state through institutions such as the Central Committee of the Korean Bar Association. Independent legal practice is not recognized under the current legal framework. There is no publicly known distinction between civil and criminal legal practitioners, and most legal representation is assigned through state channels.<br />
<br />
===Sources of defendant’s rights?===<br />
<br />
====National Sources of Defendant’s rights====<br />
<br />
Defendant’s rights in North Korea are formally outlined in the Socialist Constitution of the Democratic People’s Republic of Korea and related laws, including the Criminal Procedure Law and the Law on Lawyers. The Constitution guarantees certain procedural rights, such as the right to defense, the presumption of innocence until proven guilty, and protection against arbitrary arrest (Articles 69–74, depending on the version and translation). The Criminal Procedure Law establishes the framework for criminal investigations, trials, and legal representation.<br />
<br />
====International Sources of defendant’s rights====<br />
<br />
North Korea is a party to several international treaties relevant to defendant’s rights, most notably the International Covenant on Civil and Political Rights (ICCPR), which it acceded to in 1981. The ICCPR includes protections such as the right to a fair trial, legal representation, and protection against torture or cruel treatment. However, North Korea withdrew from the Optional Protocol to the ICCPR in 1997, which had allowed for individual complaints to the Human Rights Committee. While these international standards formally apply, the extent of their implementation in domestic legal proceedings is unclear due to limited external access to North Korea’s legal system.<br />
<br />
==Rights of the Accused==<br />
<br />
===Right Against Unlawful Arrests, Searches and Seizures===<br />
<br />
Constitution Article 79: "The citizen is guaranteed inviolability of the person and the home and privacy of correspondence."<br />
<br />
Criminal Procedure Law Article 144: Arrests shall require a warrant issued by the prosecutor, except in cases where a suspect is caught in the act (in flagrante delicto).<br />
<br />
CPL Article 155: Searches and seizures must be authorized by a search warrant issued by the prosecutor.<br />
<br />
===Right Against Unlawful Detention===<br />
<br />
CPL Article 149: Detention requires a formal order by the prosecutor and may be extended with prosecutorial approval.<br />
<br />
===Right Not to be Tortured or Ill-Treated===<br />
<br />
No explicit prohibition of torture in the Constitution or CPL.<br />
<br />
Coerced confessions are discouraged but not clearly excluded from admissibility.<br />
<br />
===Right to Medical Care===<br />
<br />
No provisions in the Constitution or CPL guaranteeing detainees access to medical care.<br />
<br />
===Right to be Informed of Charges===<br />
<br />
CPL Articles 145–148: Require the accused to be informed of the reason for arrest and the nature of charges at the time of interrogation or detention.<br />
<br />
===Right to Presumption of Innocence===<br />
<br />
Constitution Article 74: "A suspect is not to be considered guilty until a judgment is delivered by a court."<br />
<br />
===Right Against Self-Incrimination===<br />
<br />
Not expressly stated in the Constitution or CPL.<br />
<br />
No mention of a right to silence; interrogation procedures are recorded but without protection against compelled testimony.<br />
<br />
===Right to Counsel and Effective Assistance===<br />
<br />
CPL Articles 13, 18: Provide for the right to defense counsel during investigation and trial. Lawyers are appointed by or operate under state supervision.<br />
<br />
===Right to a Present a Defense===<br />
<br />
CPL Article 13: "A suspect or defendant may be defended by a lawyer from the point when he or she is informed of being a suspect in a criminal case. A suspect or defendant may organize his or her defense by presenting evidence in his or her favor, presenting testimony by witnesses in his or her favor, and giving an explanation of the criminal facts of which he or she is accused."<br />
<br />
This provision confirms the right of the accused to participate in their defense through evidence and testimony.<br />
<br />
===Right to Due Process===<br />
<br />
CPL Article 12: "A case of a criminal offense shall be instituted only in accordance with the procedures established by the criminal procedure law."<br />
<br />
CPL Article 27: "A criminal case shall go through the stages of investigation, preliminary examination, prosecution and trial."<br />
<br />
CPL Articles 13, 18, 27–43: These articles outline the stages and procedures for interrogation, evidence collection, legal representation, and court process, providing a legal foundation for due process guarantees.<br />
<br />
===Right to Equal Protection of the Laws===<br />
<br />
Constitution Article 65: "Citizens are equal before the law regardless of sex, nationality, occupation, length of residence, property status, education, party affiliation, political view, or religion."<br />
<br />
No enforcement mechanisms or discrimination protections elaborated.<br />
<br />
===Right to Bail===<br />
<br />
No provisions in the CPL for bail or conditional release pending trial.<br />
<br />
===Right Against Ex Post Facto Prosecution===<br />
<br />
DPRK Criminal Law applies prospectively; no retroactive application of criminal penalties.<br />
<br />
===Right Against Double Jeopardy===<br />
<br />
Not explicitly stated in the CPL or Constitution. Retrials are permitted under certain conditions.<br />
<br />
===Right to a Fair Trial===<br />
<br />
====Generally====<br />
<br />
CPL Articles 12–18, 27–43: Outline investigation, prosecution, and defense procedures including rights to counsel and court hearings.<br />
<br />
====Right to a Trial by Jury====<br />
<br />
No jury system exists in North Korea; all trials are conducted by judges.<br />
<br />
====Right to a Speedy Trial====<br />
<br />
No statutory time frame for completion of trial, though detention durations are regulated in Article 149.<br />
<br />
====Right to an Impartial Judge====<br />
<br />
Judges are appointed by state organs; no provisions exist for judicial independence.<br />
<br />
===Right to Language Interpretation===<br />
<br />
No provision for interpretation for non-Korean-speaking defendants.<br />
<br />
===Right to Habeas Corpus===<br />
<br />
No legal mechanism for judicial review of detention or challenging its lawfulness.<br />
<br />
===Capital Punishment===<br />
<br />
Permitted under the DPRK Penal Code for serious crimes. Procedures outlined in CPL apply.<br />
<br />
===Right to Appeal===<br />
<br />
CPL Articles 216–221: Allow appeals to higher courts within set timeframes.<br />
<br />
==Rights of Counsel==<br />
<br />
===Right to Provide Representation===<br />
<br />
CPL Article 13: See full text above; confirms that a suspect or defendant may be defended by a lawyer from the moment they are informed they are under suspicion.<br />
<br />
===Right of Access to the Client===<br />
<br />
CPL Article 18: "A lawyer may participate in a preliminary examination and trial and may meet and consult with the client within the limits set by the law. The meetings may be conducted in the presence of an investigator or a guard."<br />
<br />
This provides access, but limits it through supervision.<br />
<br />
===Right to Information===<br />
<br />
CPL Article 145: "The interrogating officer must, at the beginning of the interrogation, inform the suspect or defendant of the charges and explain their rights."<br />
<br />
===Right to Confidential Communication with the Client===<br />
<br />
While CPL Article 18 allows meetings, it permits them to be monitored, and does not guarantee confidentiality.<br />
<br />
==Means of Protecting or Enforcing Rights==<br />
<br />
===Exclusionary Rule===<br />
<br />
No provision in the CPL for excluding evidence obtained in violation of legal procedures.<br />
<br />
===Nullity of Procedure===<br />
<br />
There is no article specifying that legal proceedings may be voided due to procedural defects.<br />
<br />
===Motions===<br />
<br />
While defense counsel may raise objections or provide written opinions (CPL Article 13, 18), there is no formal procedure for pre-trial motions.<br />
<br />
===Contempt===<br />
<br />
The CPL does not define contempt proceedings or penalties for disrupting court proceedings.<br />
<br />
===Civil Actions===<br />
<br />
There is no integrated provision for civil claims within criminal trials; civil matters are handled under separate civil procedure laws.<br />
<br />
==Pre trial Procedures==<br />
<br />
===Police procedures===<br />
<br />
====Complaint/information====<br />
<br />
CPL Article 2: Public security organs and prosecutors may initiate investigations upon receiving reports or information about an offense.<br />
<br />
====Arrest, Search and Seizure Laws====<br />
<br />
=====Stops and Frisks=====<br />
The CPL does not address investigative stops or frisking procedures.<br />
<br />
=====Arrests=====<br />
CPL Article 144: Specifies conditions under which arrests may be made with or without a warrant.<br />
<br />
=====Pre-trial detention=====<br />
CPL Article 149: Allows prosecutors to issue and extend detention orders; maximum detention periods are defined procedurally.<br />
<br />
=====Searches=====<br />
CPL Article 155: Searches require a warrant and are subject to procedural recording.<br />
<br />
=====Enforcing the Rules (Exclusionary Rule, Nullity and other procedures to protect against illegal police procedures)=====<br />
There is no formal exclusionary mechanism or review process to challenge the legality of arrest, search, or interrogation procedures.<br />
<br />
====Lineups and other identification procedures====<br />
<br />
=====Lineups=====<br />
The CPL does not include procedures for physical lineups or identification.<br />
<br />
=====Other identification procedures=====<br />
No provisions found addressing voice, photographic, or other forms of suspect identification.<br />
<br />
====Interrogation====<br />
<br />
=====Before formal charge in court=====<br />
CPL Articles 145–147: Interrogation procedures require documentation and must inform the suspect of charges.<br />
<br />
=====After Defendant is formally charged=====<br />
CPL Article 148: Defense counsel may attend interrogations and submit opinions to be included in the case record.<br />
<br />
=====Enforcing the Rules (procedures to protect against illegal interrogation)=====<br />
No procedures exist for excluding improperly obtained statements or challenging interrogation conditions.<br />
<br />
==Court Procedures==<br />
<br />
===Pre-Trial===<br />
<br />
Under North Korea’s Criminal Procedure Law (CPL), pre-trial proceedings begin with the investigation phase. The initial court appearance is not clearly delineated as a separate procedural safeguard. However, Article 11 of the CPL provides a general timeline requirement:<br />
<br />
CPL Article 11: “A suspect must be interrogated promptly, and the period for investigation shall not exceed two months. If necessary, this period may be extended by the People’s Prosecutor for up to one additional month.”<br />
<br />
(Translation: Washington University Global Studies Law Review, 2016)<br />
<br />
There is no explicit provision for a preliminary hearing in the Western sense, but prosecutors decide whether to initiate prosecution based on investigative findings.<br />
<br />
The charging instrument is governed by Article 17:<br />
<br />
CPL Article 17: “The People’s Prosecutor shall, on the basis of the results of the investigation, determine whether to initiate a prosecution.”<br />
<br />
There is no provision for pre-trial motions or discovery mechanisms; such procedures are not typical of inquisitorial legal systems.<br />
<br />
===Trial===<br />
<br />
====Nature of the Trial====<br />
<br />
Trials in North Korea follow an inquisitorial model in which judges play an active role in determining the facts. Defense counsel may participate but are state-sanctioned.<br />
<br />
According to CPL Article 55: “The court shall thoroughly examine the case based on evidence and arguments presented by the prosecutor, defense counsel, and defendant.”<br />
<br />
There is no public jury system. The People’s Court typically consists of one judge and two assessors (lay judges), who decide the verdict collectively.<br />
<br />
====Defendant====<br />
<br />
The accused is required to participate and may be represented by a lawyer under CPL Article 48, which provides:<br />
<br />
CPL Article 48: “The accused may present a defense and request a lawyer. The lawyer may participate in the proceedings with the court’s approval.”<br />
<br />
====Lawyers====<br />
<br />
While legal representation is permitted, the approval of the court is required. Lawyers are appointed and managed by the state. There are no private legal practices.<br />
<br />
====Expert Witnesses====<br />
<br />
The CPL does not explicitly provide for expert witnesses. Any testimony by technical professionals would likely be introduced through state-controlled institutions.<br />
<br />
====Judges====<br />
<br />
Judges are elected by the Supreme People’s Assembly or local people’s assemblies and are subject to party control. Their independence is not institutionally guaranteed.<br />
<br />
====Victims====<br />
<br />
The CPL provides no clear role for victims to participate in criminal trials as civil claimants or as independent parties.<br />
<br />
===Sentencing===<br />
<br />
Sentencing is governed by the Penal Code and the CPL. There is no separate sentencing hearing. The sentence is announced directly following the verdict.<br />
<br />
CPL Article 68: “After a conviction is reached, the court shall announce the sentence in accordance with the Penal Code.”<br />
<br />
Sentencing guidelines are not publicly available. Factors influencing sentencing are determined internally by the judiciary and prosecutorial agencies.<br />
<br />
===Appeals===<br />
<br />
The right to appeal is provided under CPL Article 71, but the time frame and grounds are limited:<br />
<br />
CPL Article 71: “A defendant or prosecutor may file an appeal within 10 days of the judgment being rendered.”<br />
<br />
There is no appeal to an independent or international court. The Supreme Court of the DPRK is the highest court of appeal and its decisions are final.<br />
<br />
==Rights in prison==<br />
<br />
===Right to Humane Conditions of Confinement===<br />
<br />
The DPRK Socialist Constitution includes general provisions related to human dignity and human rights. Article 63 of the Constitution states:<br />
<br />
“The State shall regard it as its important duty to protect the political and ideological integrity, the lives and property, and the personal safety of the citizens.”<br />
<br />
However, the Criminal Procedure Law does not explicitly detail standards for prison conditions. There is no comprehensive codified right to humane confinement or specific standards for prison infrastructure, treatment, or oversight mechanisms found in the legal text.<br />
<br />
===Right to Medical Care in Prison===<br />
<br />
There is no explicit provision in the Criminal Procedure Law that mandates the right to medical care for prisoners. However, Article 148 (Criminal Procedure Law) provides that:<br />
<br />
"The chief of the detention facility shall take necessary measures to ensure the health of detainees.”<br />
<br />
This implies a basic duty to safeguard the health of detainees, but there is no detail on the scope, quality, or enforcement of medical services in detention facilities.<br />
<br />
===Right to Mental Health Care===<br />
<br />
No articles within the Constitution or the Criminal Procedure Law specifically reference access to mental health services or treatment for prisoners. There is no dedicated legal framework addressing the mental well-being of detainees.<br />
<br />
===Rights of Special Populations===<br />
<br />
====Women====<br />
<br />
There is no article in the Criminal Procedure Law or Constitution that provides detailed protections specific to women prisoners. However, Article 6 of the DPRK Law on the Protection and Promotion of the Rights of Women (2010) notes:<br />
<br />
“The State shall protect the rights of women in employment, education, health care, and in family life.”<br />
<br />
While this law addresses broad protections, it does not contain specific guidance on the treatment of women in detention or corrections settings.<br />
<br />
====LGBT Prisoners====<br />
<br />
No specific laws or provisions in the DPRK legal framework recognize or protect the rights of LGBT individuals, whether in society or in detention settings.<br />
<br />
====Mentally Ill Prisoners====<br />
<br />
There are no provisions in the Criminal Procedure Law or Constitution referencing the treatment, legal responsibility, or procedural protections for individuals with mental illness in the justice system.<br />
<br />
====Juveniles====<br />
<br />
The DPRK does not have a publicly available, distinct juvenile justice law. However, Article 13 of the Criminal Law states:<br />
<br />
“A person under the age of 14 is not subject to criminal punishment.”<br />
<br />
This implies a minimum age of criminal responsibility at 14, but there is limited information on protections or alternative justice measures for juvenile offenders. No specialized courts or detention facilities are mentioned in the Criminal Procedure Law.<br />
<br />
==Bibliography==<br />
<br />
DPRK Criminal Procedure Law (2007 Amendment) – English translation provided by Washington University Global Studies Law Review:<br />
https://apps.law.wustl.edu/GSLR/CitationManual/countries/northkorea.pdf<br />
<br />
DPRK Socialist Constitution (2016 Amendment) – English translation via Constitute Project:<br />
https://www.constituteproject.org/constitution/People's_Republic_of_Korea_2016.pdf?lang=en<br />
<br />
Criminal Law of the DPRK (Penal Code) – Summary excerpts and references in academic and NGO sources (no official consolidated version publicly available in English).<br />
<br />
UN Treaty Body Database – DPRK Country Ratification Status:<br />
https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=45&Lang=EN<br />
<br />
Law on the Protection and Promotion of the Rights of Women (DPRK, 2010) – Quoted in international reports and academic references; not officially published in full in English.<br />
<br />
Human Rights Watch – Legal and Human Rights Reports on DPRK:<br />
https://www.hrw.org/asia/north-korea<br />
<br />
Amnesty International Reports on North Korea’s Criminal Justice System:<br />
https://www.amnesty.org/en/location/asia-and-the-pacific/east-asia/north-korea/report-north-korea/<br />
<br />
United Nations Commission of Inquiry on Human Rights in the DPRK (2014 Report):<br />
https://www.ohchr.org/en/hr-bodies/hrc/co-idprk/report-coi-dprk</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=East_Timor&diff=381681East Timor2025-08-22T11:41:42Z<p>IBJadmin: </p>
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<br />
==Introduction==<br />
===Quick summary of the context¹===<br />
Timor-Leste, also known as East Timor, is a tropical, mountainous, country located in Southeastern Asia at the eastern end of the Indonesian archipelago, including the eastern half of Timor, the Oecussi, Pulau Atauro, and Pulau Jaco. The population of 1,506,909 people largely live in the western region near Dili. was founded in 1999 after a referendum of independence from Indonesia. In response, anti-independence Timorese organized, and with backing from the Indonesian military, killed 1,400 Timorese and displaced nearly 500,000. In 2002, Timor-Leste was internationally recognized as an independent state. Australia and the UN stepped in to facilitate peacekeeping operations for the 2007 parliamentary elections. After a 2008 attempted coup, Timor-Leste has made progress toward the development of democratic institutions and fair and free elections. Today, the primary ethnic groups in East Timor are Austronesian (Malayo-Polynesian), Melanesian-Papuan, and a small Chinese minority. The primary languages include Teturn Prasa, Mambai, Makasai, Tetun Terik, Baikenu, Kemak, Bunak, Tokodede, Fataluku, Waima'a, Galoli, Naueti, Idate, and Midiki. The majority of people (97.6%) are Roman Catholic with a small minority of Protestants (2%) and Muslims (2%). Timor-Leste is one of the poorest economies in the world, the country mainly relies on energy resources from the Timor Sea. <br />
===Type of system===<br />
Timor-Leste has a civil law system based on the Portuguese model.2 <br />
===The legal aid situation in the country===<br />
====State sponsored legal aid====<br />
Timor-Leste established a legal aid system in 2001 with United Nations Peacekeeping that includes both public and private legal aid providers.3 The legal aid service is composed of Legal Aid Offices in various districts in East Timor and the Office of the Public Defender providing assistance to those who cannot afford to retain a private lawyer.4 <br />
====Existing NGOs providing pro bono legal aid====<br />
Organizations including JU,S Juridico Social, the International Center for Transitional Justice (ICTJ), and DLA Piper offer pro bono legal services in East Timor. <br />
====Number of lawyers====<br />
There are approximately more than one hud lawyers and more than 30 judges in East Timor.5 <br />
===Sources of defendant's rights?===<br />
====National sources of defendant's rights====<br />
National sources of defendant's rights in East Timor include the Constitution of the Democratic Republic of Timor-Leste (2002), the Penal Code (2009), and Criminal Procedure Code (2005). <br />
====International sources of defendant's rights====<br />
East Timor has ratified key international treaties to secure defendant's rights including the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture (CAT), the Convention on the Rights of the Child (CRC), and the Universal Declaration of Human Rights (UDHR). <br />
==Rights of the accused==<br />
===Right against unlawful arrests, searches, and seizures===<br />
According to Article 37 of the Constitution, a person's home can only be searched if there is a search warrant and entry into a person's home at night against their will is expressly prohibited dauntless in case of serious threat to life or physical integrity of someone inside. Article 56 of the Criminal Procedure Code states that police can conduct checks and seizures without an order in the case of flagrante delicto in connection with a criminal offense that carries imprisonment or where there is strong suspicion that items relating to a criminal offense are being hidden and they may pose a danger.7 <br />
===Right against unlawful detention===<br />
Article 32 of the Constitution outlaws the imprisonment, security measure, or detention of someone for an unlimited or indefinite duration. According to the Criminal Procedure Code, a person suspected of a crime can only be held in detention for 12 hours for identification purposes. <br />
===Right not to be tortured or ill-treated===<br />
According to Article 29 of the Constitution, no one shall be subject to torture or cruel, inhuman, or degrading treatment. <br />
===Right to medical care===<br />
Pursuant to Article 57 of the Constitution, everyone has the right to health and medical care, and has the responsibility to promote and protect their health." <br />
===Right to be informed of charges===<br />
Article 30 states that any individual whose freedom is being deprived of has the right to immediately be informed of their charges and ability to contact a lawyer. 12 Further, people can only be arrested or detained under the terms clearly provided for by the law. 13 Whenever someone is detained or arrested, pursuant to Article 30, the case should be presented for consideration by a competent judge within the legal time frame. 14<br />
===Right to presumption of innocence===<br />
According to Article 24 of the Constitution, everyone charged with an offense is presumed innocent until proven guilty. 15 <br />
===Right against self-incrimination===<br />
Article 60 of the Criminal Procedure Code states that the defendant enjoys the right to remain silent, to make or not make statements at any stage of the investigation or trial with few exceptions. 16<br />
===Right to counsel and effective assistance===<br />
Pursuant to Article 60 of the Criminal Procedure Code, defendants have the right to a defender appointed by the court. 17<br />
===Right to a present a defense===<br />
Article 26 of the Constitution permits all people access to the courts for the defense of their legally protected rights and interests. 18<br />
===Right to due process===<br />
According to Article 34 of the Constitution, every individual is guaranteed the right of a hearing and defense in criminal proceedings. 19<br />
===Right to equal protection of the laws===<br />
Article 16 states that all citizens are equal before the law. 20 <br />
===Right to bail===<br />
According to Article 187 of the Criminal Procedure Code, defendants may be granted bail if the criminal offense imputed to them is punishable with imprisonment. 21 The amount of the bail depends on the socioeconomic status of the defendant, damage caused, gravity of criminal conduct, and objectives of a preventative nature being pursued. 22 Bail is broken through the issuance of a court order where the defendant failed to comply with the procedural obligations of their bail 23 <br />
===Right against ex post facto prosecution===<br />
According to Article 31, no one can be tried and convicted for an act that did not qualify as an offense the moment it was committed.24 <br />
===Right against double jeopardy===<br />
Article 31 of the Constitution stipulates that a person can not be tried and convicted for the same criminal offense more than once.25 <br />
===Right to a fair trial===<br />
====Generally====<br />
Article 247 states that hearings shall have a public character, under the penalty of irreparable nullity, and Article 248 establishes that, except as otherwise stated by the law, the proceedings and the production of proofs at the hearing are conducted orally before the court. 26 Article 252 provides that the court shall order the production of every evidence essential for the disclosure of the truth and for a proper adjudication of the case, while observing the adversarial nature of the proceedings. 27<br />
====Right to a trial by jury====<br />
The Criminal Procedure Code does not guarantee the right to trial by jury. <br />
====Right to a speedy trial====<br />
According to Article 346 of the Criminal Procedure Code, the trial hearing shall be initiated within seventy-two hours following the defendant's arrest in cases of in flagrante delicto. 28 Article 250 states that a hearing proceeds without interruption, except in the case of adjournment or interruption provided by law, and Article 250 provides that any proofs produced lose validity where the resumption of the hearing is not feasible within 30 days. 29 Article 60 states that the defendant has the right, when under arrest, to be presented to the judge for the first questioning within seventy-two hours from the arrest. 30<br />
====Right to an impartial judge====<br />
According to Article 34, judges must be independent, impartial, and subject only to the Constitution and the law. 31 <br />
===Right to language interpretation===<br />
Article 83 of the Criminal Procedure Code states that an interpreter is compulsory appointed when a person does not know or master the official language of East Timor. This also applied to translating documents and people who are hearing, speaking, or writing-impaired. 32 <br />
===Right to habeas corpus===<br />
Article 33 of the Constitution states that any person who is deprived of freedom has the right to apply for habeas corpus. 33 An application should be made in accordance with the law, so by the detainee or any other person in the exercise of their civil rights.34 It is mandated that the court rule on the application within 8 days as a hearing where both parties are present. 35<br />
===Capital punishment===<br />
Article 29, the "Right to Life" section of the Constitution, outlaws the death penalty. 36 <br />
===Right to appeal===<br />
Article 152 of the Constitution allows the Supreme Court to hear appeals against decisions (1) refusing to apply a legal rule on the grounds of unconstitutionality and (2) those applying a legal rule the constitutionality of which was challenged during proceedings.37 <br />
==Rights of counsel==<br />
===Right to provide representation===<br />
According to Article 34 of the Constitution, an accused person has the right to select, and be assisted by a lawyer at all states of the proceedings, and the state determines when having a lawyer is obligatory in the process. 38<br />
===Right of access to the client===<br />
Article 68 of the Criminal Procedure Code states that assistance by a defender is compulsory in the first questioning of a defendant held under arrest or detention, from the time the indictment is presented until such a time as a decision is rendered final, in filing claims, and in such other cases as stated in the law. 39<br />
===Right to information===<br />
Article 60 of the Criminal Procedure Code states that defendants have the right to provide evidence and request any action deemed necessary for their defense. 40<br />
===Right to confidential communication with the client===<br />
Pursuant to Article 60 of the Criminal Procedure Code, defendants have the right to freely communicate with the defender, even if under arrest or in detention. 41<br />
==Means of protecting or enforcing rights==<br />
===Exclusionary rule===<br />
Pursuant to Article 34, evidence is of no effect if obtained by torture, coercion, infringement of the physical or moral integrity of the individual, or wrongful interference with private life, the domicile, correspondence or other forms of communication. 42<br />
===Nullity of procedure===<br />
Article 102 establishes the principle of legality, that defects in procedural acts breaching any criminal procedure law provisions shall be considered null and void. 43 Article 93 of the Criminal Procedure Code states that a notice is null and void where the notice is incomplete, fails to indicate the case, court, person, or any other necessary element, a public notice is used, or the person notified fails to sign. 44 If the notice is public it must be posted in public places or published. 45 <br />
===Motions===<br />
Article 206 outlines the procedural steps to handling an incident. A motion regarding unlawful arrest or detention is reviewed within 24 hours by the Supreme Court of Justice. 46 Upon receiving the motion, the President of the Supreme Court shall order their opinion to the Public Prosecution Service within 48 hours and appoint a defender for the person under arrest or detention if the latter has not retained counsel.47 A decision shall be pronounced on the motion within 5 days and it is incumbent upon the President of the Supreme Court of Justice to hand down the decision. 48<br />
===Contempt===<br />
According to Article 245 of the Criminal Procedure Code, the conduct and order of business of a hearing are the responsibility of the judge, meaning they may adopt measures deemed appropriate for a smooth hearing. 49<br />
===Civil actions===<br />
According to Article 28 of the Constitution, all citizens have the right to disobey and resist illegal orders or those that violate fundamental rights. 5º Article 40 ensures the freedom of expression and information while Article 41 ensures freedom of the press and means of social communication for the expression of different opinions. Article 42 enshrines the freedom of peaceful and unarmed assembly and manifestation.52 Article 43 ensures the freedom of association. Article 44 ensures the freedom of movement, or immigration. Article 45 ensures the freedom of conscience, religion, and worship. 54 Article 46 stipulates that every person has the right to participate in the political life and in public affairs of the county.55 Article 47 gives every person over the age of 17 the right to vote and to be elected.56 Article 48 gives every citizen the right to petition to protect their fundamental rights. 57<br />
==Pre-trial procedures==<br />
===Police procedures===<br />
====Complaint/information====<br />
Article 147 of the Constitution states that the police force is non-partisan, prevents crime with due respect for human rights, and the law is the source of their rules and regulations. 58<br />
====Arrest, search, and seizure laws====<br />
=====Stops and frisks=====<br />
According to Article 53 of the Criminal Procedure Code, police officers may request the identification of any person where there is suspicion of a criminal offense. 59 According to Article 172, except as otherwise stated in the law, the seizure of an item relating to a criminal offense or evidence must be authorized by a judge. 60 If there's a case of urgency or danger posed by delay of seizure, police may carry out seizure without authorization of a judge. 61<br />
=====Arrests=====<br />
In the case of flagrante delicto, or a crime that is in the process of being or was just committed, any police may carry out an arrest. 62 In any other case, an arrest can only be carried out with the permission of a warrant. In order for an arrest or detention to be unlawful, it must be carried out by an invalid entity, motivated by a fact in which regard arrest or detention is not permitted by law, expiry of the time limits for the duration of the first judicial questioning, or the person is kept on premises other than the ones permitted by the law. 64<br />
=====Pre-trial detention=====<br />
The imposition of pre-trial detention depends on strong indications that a crime punishable with imprisonment exceeding three years has been committed and inadequacy or insufficiency of any other restrictive measure provided in the law. 65 Pre-trial detention must be preceded or allowed by hearing the defendant. 66 Pre-trial detention may not exceed one year without the presentation of an indictment, two years without a first-instance conviction, or three years without a final conviction except that an appeal is filed over. 67<br />
=====Searches=====<br />
According to Article 37 of the Constitution, a person's home can only be searched if there is a search warrant and entry into a person's home at night against their will is expressly prohibited dauntless in case of serious threat to life or physical integrity of someone inside. 68 Article 168 of the Criminal Procedure Code states that body searches may be carried out where there is a need to seize any items related to a crime, and when done in a reserved/ private places, the items must be seized and any person is to be arrested. 69 In terms of formalities, the search must be authorized by warrant, the Public Prosecution Service can appoint persons for search, the dignity and decency of the person shall be respected, the person must sign a report required during the search, duplicates ought to be provided to the search, and in case of danger police may conduct a search without a warrant. 7º However, the abovementioned limits are increased by six months if the case is complex and if the defendant needs to stay in prison for another case. 71<br />
=====Enforcing the rules (exclusionary rule, nullity and other procedures to protect against illegal police procedures)=====<br />
According to Article 62 of the Criminal Procedure Code, methods and techniques which might restrict or impair the freedom of will or of decision, or the ability to recall and reason, shall not be employed, even with the consent of the defendant. 72 Article 59 states that omission or breach of the provisions on declaring a person a defendant implies that the statements made by such person in such capacity shall not be used as evidence against him or her. 73 Article 56 provides that where a search, check or seizure is conducted without prior judicial authorization due to urgency, the competent judicial authority shall assess the validity of the act. 74 Article 110 prohibits proof obtained through torture or duress, as well as by means that impair free will, memory, or reasoning capacity, and Article 110 extends this prohibition regardless of the origin of the evidence. 75 Article 111 prohibits proof obtained through intrusion into private life, domicile, mail, or telecommunications, except as permitted by law or with express consent. 76 Article 112 declares that proof obtained in breach of these provisions is invalid from a procedural standpoint, and Article 112 requires the removal of such prohibited proof from the records under penalty of irreparable nullity.7" Article 108(1) states that only the judge or the public prosecutor may declare the nullity or irregularity of a procedural act, and Article 108(3) provides that such declaration results not only in the invalidity of the defective act but also of any subsequent acts dependent on it. 78 <br />
====Lineups and other identification procedures====<br />
=====Lineups=====<br />
Article 163 of the Criminal Procedure Code suggests that if a person fails to identify a person by describing their characteristics, physical identification, likely a lineup, should be done.79 Should there be more than one person identified, the procedure of physical identification and using them as a means of evidence will be applied to them. If identification in a lineup cannot be done at a hearing due to intimidation or harassment, it will be done at another time without the identifier being seen by the suspect.81 According to Article 170, searches of inhabited houses/ outbuildings can only be carried out between 6:00pm and 8:00pm.82 Consent is also relevant to the carrying out of the search.83 <br />
=====Other identification procedures=====<br />
According to Article 53 of the Criminal Procedure Code, a suspect may be subject to tests to establish full identification such as fingerprint, picture-taking, or body check.84 Article 61 states that defendants must provide identification, criminal background, and proof of identity and residence.85 <br />
====Interrogation====<br />
=====Before formal charge in court=====<br />
According to Article 62 of the Criminal Procedure Code, questioning of a defendant must be conducted without methods or techniques that impair freedom of will, decision-making, or recall, even with the defendant’s consent.86 The process begins with a reading and explanation of the defendant’s rights and duties, followed by clear communication of the acts imputed to them, and advising that silence shall not be detrimental.87 Article 63 provides that the judge has exclusive competence to conduct the first questioning of an arrested defendant within seventy-two hours of arrest, in the presence of the public prosecutor, defender, interpreter, and a record keeper.88 Article 64 states that further questioning during the enquiry is conducted by the competent authority for that procedural phase or a delegated person.89 <br />
=====After defendant is formally charged=====<br />
According to Article 117, statements by the defendant are admissible only if, after being advised of the right to remain silent, the defendant voluntarily chooses to speak.90 The defendant may refuse to answer any questions without justification, and Articles 62 to 64 apply to questioning at all procedural stages.91 Article 268 states that at the trial hearing, questioning begins with confirming the defendant’s identity and proceeds under the same safeguards outlined in Article 62.92 Article 265 places the defendant’s statement as the first step in the order of producing proof at trial, while Article 267 limits the reading of prior statements from the enquiry phase to cases of contradiction or clarification.93 <br />
=====Enforcing the rules (procedures to protect against illegal interrogation)=====<br />
According to Article 60, defendants have the right to be informed of the charges, decide freely whether to make statements, and to be assisted by counsel.94 Article 68 makes legal assistance compulsory during the first questioning of a detained defendant and at other key stages.95 Article 59 states that omission or breach of procedures for declaring someone a defendant invalidates their statements as evidence.96 Article 110 absolutely prohibits evidence obtained through torture, coercion, or methods impairing free will, decision-making, or memory, and Article 112 renders such evidence procedurally invalid and subject to removal from the record.97 Article 267 affirms that statements obtained in breach of procedural rules are invalid as proof.98 <br />
==Court procedures==<br />
===Pre-trial===<br />
====Initial court appearance====<br />
Detention is carried out for the purpose of within 73 hours, bringing the arrested under detention to court in an expedited proceeding or presenting them for their first judicial questioning or ensuring that person is immediately brought before judicial authority.99 <br />
====Charging instrument====<br />
According to Article 236, the Public Prosecution Service shall issue a writ of indictment within 15 days when sufficient evidence has been gathered; the writ, under the penalty of nullity, shall contain identification of the defendant, the account of the facts, applicable provisions, and date/signature.100 <br />
====Preliminary hearing====<br />
Before trial, the court assesses the indictment and sets a trial date, according to Article 239, once the records are received the judge shall assess the jurisdiction, legitimacy, nullities and other exceptions or any prior issues, may reject a blatantly groundless indictment, or admit the indictment and set a trial date.101 Article 240 specifies what the order admitting the indictment and setting a trial date must contain (appointment of defender if needed, measures, criminal record request) and that it is notified with a copy of the indictment.102 <br />
====Pre-trial motions====<br />
According to Article 239, once the records are received the judge shall assess the jurisdiction, legitimacy, nullities and other exceptions or any prior issues that are likely to impede an immediate assessment of the grounds of action.103 <br />
====Discovery====<br />
According to Article 77, the public prosecutor, the suspect, the defendant and the aggrieved person may have access to the records and obtain a certificate or copy therefrom, subject to authorization rules in paragraphs.104 <br />
===Trial===<br />
====Nature of the trial====<br />
According to Article 245 of the Criminal Procedure Code, the conduct of the hearing and the order of business are the responsibility of the judge, who shall adopt such measures as deemed appropriate and necessary for the smooth running of the hearing, provided they are not inconsistent with any expressed law.105 Article 246 states that the court shall ensure the observance of the adversarial nature of the proceeding, namely before a decision on incidental matters is made and in relation to the presentation or examination of any proof at the hearing, under the penalty of nullity.106 Article 247 provides that hearings shall have a public character, under the penalty of irreparable nullity, and Article 248 establishes that, except as otherwise stated by the law, the proceedings and the production of proofs at the hearing are conducted orally before the court.107 <br />
====Defendant====<br />
According to Article 253 of the Criminal Procedure Code, the presence of the defendant at the hearing is compulsory, except as otherwise stated in the law, and the judge shall take the appropriate and necessary action to prevent the defendant from leaving before the hearing concludes.108 Once questioned about identification, the defendant may be removed from the courtroom for repeated breaches of conduct or when their presence may contribute to inhibiting or intimidating a person who is to make statements.109 Even if removed, the defendant must hear the reading of the sentence.110 <br />
====Lawyers====<br />
Article 249 specifies that the minutes of the hearing must include the identification of the defendant and his or her counsel or defender, along with other procedural participants.111 <br />
====Expert witnesses====<br />
Expert witnesses (religious ministers, lawyers, medical doctors, journalists, and other members of credit institutions) must maintain professional secrecy and may refuse to give a deposition on facts covered by that secrecy.112 The court is allowed to be accompanied by an expert witness per Article 146 of the Criminal Procedure Code, in order to explain the inspection and interpret the facts.113 Experts are appointed in the decision ordering the inspection and shall attend the trial.114 Section VIII describes the procedure for designating experts and the object.115 <br />
====Judges====<br />
According to Article 108 of the Criminal Procedure Code, only the judge or the public prosecutor may declare the nullity or irregularity of a procedural act, and the judge may order such acts to be performed again where necessary.116 Articles 239 assign the judge the responsibility to receive the indictment, verify jurisdiction, rule on nullities or exceptions, and issue the order admitting the indictment and setting the trial date.117 Under Article 250, the judge determines adjournments for rest or refreshment, and may interrupt the hearing if indispensable participants are absent, essential evidence is unavailable, or incidental matters arise.118 Article 253 further requires the judge to prevent the defendant from leaving before the hearing ends and allows the judge to remove the defendant for repeated breaches of conduct or for intimidating witnesses.119 Article 249 requires that hearing minutes include the name and signature of the judge, confirming judicial oversight of the record.120 Finally, Article 278 establishes that the sentence is read at the hearing by the presiding judge after deliberation and voting, and Article 280 requires the judge to explain the sentence to the defendant orally in terms the defendant can understand.121 <br />
====Victims====<br />
According to Article 59 of the Criminal Procedure Code, victims are recognized through the right of the injured party to file a complaint.122 Article 215 further establishes that the right to complain lapses six months from the date of the crime, if the victim dies, or from the date the victim becomes legally competent to.123 <br />
===Sentencing===<br />
Article 281 establishes that once deliberations are complete, the judge drafts the sentence in line with the prevailing opinion. The sentence must be signed by the judge and assistant judges, who may issue separate opinions. It must then be publicly read and explained in court within fifteen days, with the reading serving as official notification to those present.124 <br />
===Appeals===<br />
The Code establishes the principle of maximum admissibility of appeals in Article 287, allowing appeals against court orders, sentences, and decisions unless explicitly prohibited by law, and permitting challenges on both fact and law.125 Article 288 specifies exceptions, such as routine orders, discretionary decisions, minor civil compensation cases, and other situations defined by law.126 Article 289 identifies those eligible to appeal: the public prosecutor, the defendant, and any person fined or whose rights are affected.127 Article 290 provides that an appeal generally covers the entire decision, though in cases of co-defendants it also extends to them unless strictly personal grounds apply.128 Appeals proceed in degrees: Article 291 states that district court decisions go to the Supreme Court of Justice, while decisions from the Supreme Court’s criminal section are reviewed by its full bench, with both fact and law subject to review.129 The scope of appeal may be limited under Article 292 to distinct parts of a decision, such as separating criminal from civil issues or culpability from penalty, but only if they can be adjudicated independently.130 Article 293 protects defendants by prohibiting reformatio in pejus, meaning penalties cannot be increased when only the defendant appeals.131 Articles 294 and 295 allow for waiving or withdrawing an appeal, and provide that certain appeals, particularly those closing a case, must be remitted to the higher court.132 Article 296 lists appeals that must be remitted immediately, such as challenges to restrictive measures, disqualification rulings, or rejected indictments, while Article 297 requires other appeals to be remitted together with the appeal of the final decision.133 Finally, Article 298 explains the effects of appeals: an appeal against a conviction suspends the decision, while others may suspend enforcement if conditions (such as deposits) are met, but most are merely devolutive, passing the case for review without halting enforcement.134 <br />
====Right to counsel====<br />
Pursuant to Article 60 of the Criminal Procedure Code, defendants have the right to a defender appointed by the court.135 <br />
====Ineffective assistance of counsel====<br />
The Criminal Procedure Code does not explicitly mention “ineffective assistance of counsel.” However, Articles 301 provides that appeals may be based on errors of fact or law as well as nullity of procedure, which offers grounds to challenge inadequate representation within the broader framework of procedural errors.136 <br />
====Collateral remedies (habeas etc…)====<br />
Article 103 of the Criminal Procedure Code describes a variety of irreparable nullities while Article 104 describes reparable nullities.137 Immunities and prerogatives established by the law in respect of the duty to witness and the manner and place where a deposition is to be given are applicable in relation to a criminal proceeding.138 Article 205 of the Criminal Procedure Code states that any person who finds themself under unlawful arrest or detention may request the Supreme Court of Justice to grant them a writ of habeas corpus.139 <br />
==Rights in prison==<br />
===Right to humane conditions of confinement===<br />
There are no references to humane conditions of confinement in the Criminal Procedure Code. <br />
===Immigrant’s rights in detention===<br />
Pre-trial detention may be imposed on someone who unlawfully entered or remains on national territory or against whom an extradition or expulsion process has been initiated.140 <br />
===Right to medical care in prison===<br />
Although there is no explicit mention to the right of medical care in prison, pursuant to Article 57 of the Constitution, everyone has the right to health and medical care, and has the responsibility to promote and protect their health.141 <br />
===Right to mental health care===<br />
Article 32 of the Constitution states that in case of danger a result of mental illness, security measures may be successively extended by judicial decision.142 <br />
===Restriction of rights===<br />
Although the code provides for detention order, preventative detention, and security measures, it does not directly list which rights may be restricted in prison. <br />
===Rights of special populations===<br />
====Women====<br />
There are no references to women in the Criminal Procedure Code. <br />
====LGBTQ+ prisoners====<br />
There are no references to LGBTQ+ prisoners in the Criminal Procedure Code. <br />
====Mentally ill prisoners====<br />
According to Article 194 of the Criminal Procedure Code, a person with a mental health disorder, where requirements for pre-trial are met and as long as the disorder persists, be preventatively admitted to a psychiatric hospital or other appropriate establishment.143 <br />
====Juveniles====<br />
According to Article 18 of the Constitution, children are entitled to special protections by the family, community, and state, particularly against abandonment, discrimination, violence, oppression, sexual abuse, and exploitation.144 The Constitution clarifies that this applied to rights enshrined in law and international conventions and children born out of wedlock.145 The Constitution also states that youth initiatives toward national unity, reconstruction, defense, and development will be promoted by the state along with education, health, and vocational training for the youth.146 <br />
==Footnotes==<br />
1 [https://www.cia.gov/the-world-factbook/countries/timor-leste/ Timor-Leste The World Factbook]<br>2 [https://www.cia.gov/the-world-factbook/countries/timor-leste/ Timor-Leste | The World Factbook]<br>3 [https://peacekeeping.un.org/sites/default/files/past/etimor/untaetR/2001-24.pdf Regulation NO. 2001/24 On the Establishment of a Legal Aid Service in East Timor | United Nations]<br>4 [https://peacekeeping.un.org/sites/default/files/past/etimor/untaetR/2001-24.pdf Regulation NO. 2001/24 On the Establishment of a Legal Aid Service in East Timor | United Nations. p.2]<br>5 [https://www.nichibenren.or.jp/library/ja/bar_association/word/data/East_Timor.pdf Information Sheet - [East Timor]]<br>6 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Proiect. Article 37. Section 2]<br>7 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 56, Section 1-4, p.16]<br>8 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 32, Section 1]<br>9 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 53, Section 4, p.16]<br>10 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 29. Section 4]<br>11 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 57, Section 1]<br>12 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 30. Section 3]<br>13 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 30, Section 2]<br>14 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 30]<br>15 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 34, Section 1]<br>16 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 60. Section c. p.17]<br>17 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 60, Section e, p.18]<br>18 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 26. Section 1]<br>19 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 34, Section 3]<br>20 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 16. Section 1]<br>21 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 187, Section 1, p.51]<br>22 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 187. Section 2. p.51]<br>23 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 189, Section 1. p.51]<br>24 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 31. Section 2]<br>25 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 31. Section 4]<br>26 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 247(1) and 248. p.66t]<br>27 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 252. p.67]<br>28 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 246, Section 2. p.51]<br>29 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 250, Section 1 and 5. p.66]<br>30 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 60, Section a, p.17]<br>31 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 40. p.13]<br>32 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 83. Section 1(a-b), p.24]<br>33 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 33, Section 1]<br>34 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 33, Section 2]<br>35 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 33. Section 3]<br>36 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 29, Section 3]<br>37 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 152. Section 1(a-b)]<br>38 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 32, Section 4]<br>39 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 68, Section a-d, p.20]<br>40 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 60, Section h. p.18]<br>41 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 60. Section f. p.18]<br>42 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 34, Section 4]<br>43 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 102, Section 1. p.30]<br>44 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 93. Section a-c. p.27]<br>45 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 93. Section c. p.27]<br>46 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 206, Section 1. p.55]<br>47 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 206, Section 2. p.55]<br>48 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 206 Section 3-4. p.55]<br>49 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 245, Section 1. p.65]<br>50 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 28, Section 1]<br>51 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 40 and 41]<br>52 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 42]<br>53 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 43]<br>54 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 45]<br>55 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 46]<br>56 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 47]<br>57 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 48]<br>58 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 147. Section 1-3]<br>59 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 53. Section 2. p.16]<br>60 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 172. Section 1. p.46]<br>61 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 172. Section 2. p.46]<br>62 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 218, Section 1. p.59]<br>63 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 220. Section 1. p.59]<br>64 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 205, Section 2. p.55]<br>65 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 194, Section 1, p.52]<br>66 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 194, Section 2, p.52]<br>67 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 195, Section 1. p.52]<br>68 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 37. Section 2]<br>69 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 168. Section 1-2. p.45]<br>70 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 169, Section 1-6, p.45]<br>71 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 195, Section 1. p.53]<br>72 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 62. Section 2. p.18]<br>73 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 59. Section 4. p.17]<br>74 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 56, Section 2. p.16]<br>75 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 110. Section 1-2. p.32]<br>76 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 111. p.32]<br>77 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 112. Section 1-2, p.32]<br>78 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 108, Section 1-3, p.31]<br>79 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 163, Section 1. p.44]<br>80 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 163, Section 3. p.44]<br>81 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 64, Section 1, p.19]<br>82 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 63, Section 1, p.19]<br>83 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 62, Section 3, p.18]<br>84 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government.]<br>85 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 64, Section 1, p.19]<br>86 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 63, Section 1, p.19]<br>87 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 62, Section 3, p.18]<br>88 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 267, Section 4, p.71]<br>89 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 110, p.58]<br>90 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 59, Section 4, p.17]<br>91 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government]<br>92 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 77, Section 2-3, p.22]<br>93 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 239, Section 1(a), p.64]<br>94 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 240, p.64]<br>95 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government]<br>96 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 249, Section (1)(c), p.66]<br>97 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 253, Section 3-4, p.67]<br>98 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 249, Section 1(h), p.66]<br>99 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 253, p.67]<br>100 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 250, Section 2, p.66]<br>101 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government]<br>102 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 289, p.77]<br>103 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 289, Section 2, p.76]<br>104 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 289, p.76]<br>105 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 103-104, p.30]<br>106 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 301, Section c, p.79]<br>107 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government]<br>108 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 194, Section 2, p.52]<br>109 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 205, Section 1, p.55]<br>110 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government]<br>111 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 32, Section 2]<br>112 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 57, Section 1]<br>113 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 194, Section 4, p.52]<br>114 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 18]<br>115 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 18]<br>116 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 19]<br></div>IBJadminhttps://defensewiki.ibj.org/index.php?title=East_Timor&diff=381680East Timor2025-08-22T11:41:01Z<p>IBJadmin: 1st iteration of East Timor - written by Kylie, uploaded by Kevin</p>
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* Constitution of East Timor <ref>https://timor-leste.gov.tl/wp-content/uploads/2010/03/Constitution_RDTL_ENG.pdf</ref><br />
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==Introduction==<br />
===Quick summary of the context¹===<br />
Timor-Leste, also known as East Timor, is a tropical, mountainous, country located in Southeastern Asia at the eastern end of the Indonesian archipelago, including the eastern half of Timor, the Oecussi, Pulau Atauro, and Pulau Jaco. The population of 1,506,909 people largely live in the western region near Dili. was founded in 1999 after a referendum of independence from Indonesia. In response, anti-independence Timorese organized, and with backing from the Indonesian military, killed 1,400 Timorese and displaced nearly 500,000. In 2002, Timor-Leste was internationally recognized as an independent state. Australia and the UN stepped in to facilitate peacekeeping operations for the 2007 parliamentary elections. After a 2008 attempted coup, Timor-Leste has made progress toward the development of democratic institutions and fair and free elections. Today, the primary ethnic groups in East Timor are Austronesian (Malayo-Polynesian), Melanesian-Papuan, and a small Chinese minority. The primary languages include Teturn Prasa, Mambai, Makasai, Tetun Terik, Baikenu, Kemak, Bunak, Tokodede, Fataluku, Waima'a, Galoli, Naueti, Idate, and Midiki. The majority of people (97.6%) are Roman Catholic with a small minority of Protestants (2%) and Muslims (2%). Timor-Leste is one of the poorest economies in the world, the country mainly relies on energy resources from the Timor Sea. <br />
===Type of system===<br />
Timor-Leste has a civil law system based on the Portuguese model.2 <br />
===The legal aid situation in the country===<br />
====State sponsored legal aid====<br />
Timor-Leste established a legal aid system in 2001 with United Nations Peacekeeping that includes both public and private legal aid providers.3 The legal aid service is composed of Legal Aid Offices in various districts in East Timor and the Office of the Public Defender providing assistance to those who cannot afford to retain a private lawyer.4 <br />
====Existing NGOs providing pro bono legal aid====<br />
Organizations including JU,S Juridico Social, the International Center for Transitional Justice (ICTJ), and DLA Piper offer pro bono legal services in East Timor. <br />
====Number of lawyers====<br />
There are approximately more than one hud lawyers and more than 30 judges in East Timor.5 <br />
===Sources of defendant's rights?===<br />
====National sources of defendant's rights====<br />
National sources of defendant's rights in East Timor include the Constitution of the Democratic Republic of Timor-Leste (2002), the Penal Code (2009), and Criminal Procedure Code (2005). <br />
====International sources of defendant's rights====<br />
East Timor has ratified key international treaties to secure defendant's rights including the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture (CAT), the Convention on the Rights of the Child (CRC), and the Universal Declaration of Human Rights (UDHR). <br />
==Rights of the accused==<br />
===Right against unlawful arrests, searches, and seizures===<br />
According to Article 37 of the Constitution, a person's home can only be searched if there is a search warrant and entry into a person's home at night against their will is expressly prohibited dauntless in case of serious threat to life or physical integrity of someone inside. Article 56 of the Criminal Procedure Code states that police can conduct checks and seizures without an order in the case of flagrante delicto in connection with a criminal offense that carries imprisonment or where there is strong suspicion that items relating to a criminal offense are being hidden and they may pose a danger.7 <br />
===Right against unlawful detention===<br />
Article 32 of the Constitution outlaws the imprisonment, security measure, or detention of someone for an unlimited or indefinite duration. According to the Criminal Procedure Code, a person suspected of a crime can only be held in detention for 12 hours for identification purposes. <br />
===Right not to be tortured or ill-treated===<br />
According to Article 29 of the Constitution, no one shall be subject to torture or cruel, inhuman, or degrading treatment. <br />
===Right to medical care===<br />
Pursuant to Article 57 of the Constitution, everyone has the right to health and medical care, and has the responsibility to promote and protect their health." <br />
===Right to be informed of charges===<br />
Article 30 states that any individual whose freedom is being deprived of has the right to immediately be informed of their charges and ability to contact a lawyer. 12 Further, people can only be arrested or detained under the terms clearly provided for by the law. 13 Whenever someone is detained or arrested, pursuant to Article 30, the case should be presented for consideration by a competent judge within the legal time frame. 14<br />
===Right to presumption of innocence===<br />
According to Article 24 of the Constitution, everyone charged with an offense is presumed innocent until proven guilty. 15 <br />
===Right against self-incrimination===<br />
Article 60 of the Criminal Procedure Code states that the defendant enjoys the right to remain silent, to make or not make statements at any stage of the investigation or trial with few exceptions. 16<br />
===Right to counsel and effective assistance===<br />
Pursuant to Article 60 of the Criminal Procedure Code, defendants have the right to a defender appointed by the court. 17<br />
===Right to a present a defense===<br />
Article 26 of the Constitution permits all people access to the courts for the defense of their legally protected rights and interests. 18<br />
===Right to due process===<br />
According to Article 34 of the Constitution, every individual is guaranteed the right of a hearing and defense in criminal proceedings. 19<br />
===Right to equal protection of the laws===<br />
Article 16 states that all citizens are equal before the law. 20 <br />
===Right to bail===<br />
According to Article 187 of the Criminal Procedure Code, defendants may be granted bail if the criminal offense imputed to them is punishable with imprisonment. 21 The amount of the bail depends on the socioeconomic status of the defendant, damage caused, gravity of criminal conduct, and objectives of a preventative nature being pursued. 22 Bail is broken through the issuance of a court order where the defendant failed to comply with the procedural obligations of their bail 23 <br />
===Right against ex post facto prosecution===<br />
According to Article 31, no one can be tried and convicted for an act that did not qualify as an offense the moment it was committed.24 <br />
===Right against double jeopardy===<br />
Article 31 of the Constitution stipulates that a person can not be tried and convicted for the same criminal offense more than once.25 <br />
===Right to a fair trial===<br />
====Generally====<br />
Article 247 states that hearings shall have a public character, under the penalty of irreparable nullity, and Article 248 establishes that, except as otherwise stated by the law, the proceedings and the production of proofs at the hearing are conducted orally before the court. 26 Article 252 provides that the court shall order the production of every evidence essential for the disclosure of the truth and for a proper adjudication of the case, while observing the adversarial nature of the proceedings. 27<br />
====Right to a trial by jury====<br />
The Criminal Procedure Code does not guarantee the right to trial by jury. <br />
====Right to a speedy trial====<br />
According to Article 346 of the Criminal Procedure Code, the trial hearing shall be initiated within seventy-two hours following the defendant's arrest in cases of in flagrante delicto. 28 Article 250 states that a hearing proceeds without interruption, except in the case of adjournment or interruption provided by law, and Article 250 provides that any proofs produced lose validity where the resumption of the hearing is not feasible within 30 days. 29 Article 60 states that the defendant has the right, when under arrest, to be presented to the judge for the first questioning within seventy-two hours from the arrest. 30<br />
====Right to an impartial judge====<br />
According to Article 34, judges must be independent, impartial, and subject only to the Constitution and the law. 31 <br />
===Right to language interpretation===<br />
Article 83 of the Criminal Procedure Code states that an interpreter is compulsory appointed when a person does not know or master the official language of East Timor. This also applied to translating documents and people who are hearing, speaking, or writing-impaired. 32 <br />
===Right to habeas corpus===<br />
Article 33 of the Constitution states that any person who is deprived of freedom has the right to apply for habeas corpus. 33 An application should be made in accordance with the law, so by the detainee or any other person in the exercise of their civil rights.34 It is mandated that the court rule on the application within 8 days as a hearing where both parties are present. 35<br />
===Capital punishment===<br />
Article 29, the "Right to Life" section of the Constitution, outlaws the death penalty. 36 <br />
===Right to appeal===<br />
Article 152 of the Constitution allows the Supreme Court to hear appeals against decisions (1) refusing to apply a legal rule on the grounds of unconstitutionality and (2) those applying a legal rule the constitutionality of which was challenged during proceedings.37 <br />
==Rights of counsel==<br />
===Right to provide representation===<br />
According to Article 34 of the Constitution, an accused person has the right to select, and be assisted by a lawyer at all states of the proceedings, and the state determines when having a lawyer is obligatory in the process. 38<br />
===Right of access to the client===<br />
Article 68 of the Criminal Procedure Code states that assistance by a defender is compulsory in the first questioning of a defendant held under arrest or detention, from the time the indictment is presented until such a time as a decision is rendered final, in filing claims, and in such other cases as stated in the law. 39<br />
===Right to information===<br />
Article 60 of the Criminal Procedure Code states that defendants have the right to provide evidence and request any action deemed necessary for their defense. 40<br />
===Right to confidential communication with the client===<br />
Pursuant to Article 60 of the Criminal Procedure Code, defendants have the right to freely communicate with the defender, even if under arrest or in detention. 41<br />
==Means of protecting or enforcing rights==<br />
===Exclusionary rule===<br />
Pursuant to Article 34, evidence is of no effect if obtained by torture, coercion, infringement of the physical or moral integrity of the individual, or wrongful interference with private life, the domicile, correspondence or other forms of communication. 42<br />
===Nullity of procedure===<br />
Article 102 establishes the principle of legality, that defects in procedural acts breaching any criminal procedure law provisions shall be considered null and void. 43 Article 93 of the Criminal Procedure Code states that a notice is null and void where the notice is incomplete, fails to indicate the case, court, person, or any other necessary element, a public notice is used, or the person notified fails to sign. 44 If the notice is public it must be posted in public places or published. 45 <br />
===Motions===<br />
Article 206 outlines the procedural steps to handling an incident. A motion regarding unlawful arrest or detention is reviewed within 24 hours by the Supreme Court of Justice. 46 Upon receiving the motion, the President of the Supreme Court shall order their opinion to the Public Prosecution Service within 48 hours and appoint a defender for the person under arrest or detention if the latter has not retained counsel.47 A decision shall be pronounced on the motion within 5 days and it is incumbent upon the President of the Supreme Court of Justice to hand down the decision. 48<br />
===Contempt===<br />
According to Article 245 of the Criminal Procedure Code, the conduct and order of business of a hearing are the responsibility of the judge, meaning they may adopt measures deemed appropriate for a smooth hearing. 49<br />
===Civil actions===<br />
According to Article 28 of the Constitution, all citizens have the right to disobey and resist illegal orders or those that violate fundamental rights. 5º Article 40 ensures the freedom of expression and information while Article 41 ensures freedom of the press and means of social communication for the expression of different opinions. Article 42 enshrines the freedom of peaceful and unarmed assembly and manifestation.52 Article 43 ensures the freedom of association. Article 44 ensures the freedom of movement, or immigration. Article 45 ensures the freedom of conscience, religion, and worship. 54 Article 46 stipulates that every person has the right to participate in the political life and in public affairs of the county.55 Article 47 gives every person over the age of 17 the right to vote and to be elected.56 Article 48 gives every citizen the right to petition to protect their fundamental rights. 57<br />
==Pre-trial procedures==<br />
===Police procedures===<br />
====Complaint/information====<br />
Article 147 of the Constitution states that the police force is non-partisan, prevents crime with due respect for human rights, and the law is the source of their rules and regulations. 58<br />
====Arrest, search, and seizure laws====<br />
=====Stops and frisks=====<br />
According to Article 53 of the Criminal Procedure Code, police officers may request the identification of any person where there is suspicion of a criminal offense. 59 According to Article 172, except as otherwise stated in the law, the seizure of an item relating to a criminal offense or evidence must be authorized by a judge. 60 If there's a case of urgency or danger posed by delay of seizure, police may carry out seizure without authorization of a judge. 61<br />
=====Arrests=====<br />
In the case of flagrante delicto, or a crime that is in the process of being or was just committed, any police may carry out an arrest. 62 In any other case, an arrest can only be carried out with the permission of a warrant. In order for an arrest or detention to be unlawful, it must be carried out by an invalid entity, motivated by a fact in which regard arrest or detention is not permitted by law, expiry of the time limits for the duration of the first judicial questioning, or the person is kept on premises other than the ones permitted by the law. 64<br />
=====Pre-trial detention=====<br />
The imposition of pre-trial detention depends on strong indications that a crime punishable with imprisonment exceeding three years has been committed and inadequacy or insufficiency of any other restrictive measure provided in the law. 65 Pre-trial detention must be preceded or allowed by hearing the defendant. 66 Pre-trial detention may not exceed one year without the presentation of an indictment, two years without a first-instance conviction, or three years without a final conviction except that an appeal is filed over. 67<br />
=====Searches=====<br />
According to Article 37 of the Constitution, a person's home can only be searched if there is a search warrant and entry into a person's home at night against their will is expressly prohibited dauntless in case of serious threat to life or physical integrity of someone inside. 68 Article 168 of the Criminal Procedure Code states that body searches may be carried out where there is a need to seize any items related to a crime, and when done in a reserved/ private places, the items must be seized and any person is to be arrested. 69 In terms of formalities, the search must be authorized by warrant, the Public Prosecution Service can appoint persons for search, the dignity and decency of the person shall be respected, the person must sign a report required during the search, duplicates ought to be provided to the search, and in case of danger police may conduct a search without a warrant. 7º However, the abovementioned limits are increased by six months if the case is complex and if the defendant needs to stay in prison for another case. 71<br />
=====Enforcing the rules (exclusionary rule, nullity and other procedures to protect against illegal police procedures)=====<br />
According to Article 62 of the Criminal Procedure Code, methods and techniques which might restrict or impair the freedom of will or of decision, or the ability to recall and reason, shall not be employed, even with the consent of the defendant. 72 Article 59 states that omission or breach of the provisions on declaring a person a defendant implies that the statements made by such person in such capacity shall not be used as evidence against him or her. 73 Article 56 provides that where a search, check or seizure is conducted without prior judicial authorization due to urgency, the competent judicial authority shall assess the validity of the act. 74 Article 110 prohibits proof obtained through torture or duress, as well as by means that impair free will, memory, or reasoning capacity, and Article 110 extends this prohibition regardless of the origin of the evidence. 75 Article 111 prohibits proof obtained through intrusion into private life, domicile, mail, or telecommunications, except as permitted by law or with express consent. 76 Article 112 declares that proof obtained in breach of these provisions is invalid from a procedural standpoint, and Article 112 requires the removal of such prohibited proof from the records under penalty of irreparable nullity.7" Article 108(1) states that only the judge or the public prosecutor may declare the nullity or irregularity of a procedural act, and Article 108(3) provides that such declaration results not only in the invalidity of the defective act but also of any subsequent acts dependent on it. 78 <br />
====Lineups and other identification procedures====<br />
=====Lineups=====<br />
Article 163 of the Criminal Procedure Code suggests that if a person fails to identify a person by describing their characteristics, physical identification, likely a lineup, should be done.79 Should there be more than one person identified, the procedure of physical identification and using them as a means of evidence will be applied to them. If identification in a lineup cannot be done at a hearing due to intimidation or harassment, it will be done at another time without the identifier being seen by the suspect.81 According to Article 170, searches of inhabited houses/ outbuildings can only be carried out between 6:00pm and 8:00pm.82 Consent is also relevant to the carrying out of the search.83 <br />
=====Other identification procedures=====<br />
According to Article 53 of the Criminal Procedure Code, a suspect may be subject to tests to establish full identification such as fingerprint, picture-taking, or body check.84 Article 61 states that defendants must provide identification, criminal background, and proof of identity and residence.85 <br />
====Interrogation====<br />
=====Before formal charge in court=====<br />
According to Article 62 of the Criminal Procedure Code, questioning of a defendant must be conducted without methods or techniques that impair freedom of will, decision-making, or recall, even with the defendant’s consent.86 The process begins with a reading and explanation of the defendant’s rights and duties, followed by clear communication of the acts imputed to them, and advising that silence shall not be detrimental.87 Article 63 provides that the judge has exclusive competence to conduct the first questioning of an arrested defendant within seventy-two hours of arrest, in the presence of the public prosecutor, defender, interpreter, and a record keeper.88 Article 64 states that further questioning during the enquiry is conducted by the competent authority for that procedural phase or a delegated person.89 <br />
=====After defendant is formally charged=====<br />
According to Article 117, statements by the defendant are admissible only if, after being advised of the right to remain silent, the defendant voluntarily chooses to speak.90 The defendant may refuse to answer any questions without justification, and Articles 62 to 64 apply to questioning at all procedural stages.91 Article 268 states that at the trial hearing, questioning begins with confirming the defendant’s identity and proceeds under the same safeguards outlined in Article 62.92 Article 265 places the defendant’s statement as the first step in the order of producing proof at trial, while Article 267 limits the reading of prior statements from the enquiry phase to cases of contradiction or clarification.93 <br />
=====Enforcing the rules (procedures to protect against illegal interrogation)=====<br />
According to Article 60, defendants have the right to be informed of the charges, decide freely whether to make statements, and to be assisted by counsel.94 Article 68 makes legal assistance compulsory during the first questioning of a detained defendant and at other key stages.95 Article 59 states that omission or breach of procedures for declaring someone a defendant invalidates their statements as evidence.96 Article 110 absolutely prohibits evidence obtained through torture, coercion, or methods impairing free will, decision-making, or memory, and Article 112 renders such evidence procedurally invalid and subject to removal from the record.97 Article 267 affirms that statements obtained in breach of procedural rules are invalid as proof.98 <br />
==Court procedures==<br />
===Pre-trial===<br />
====Initial court appearance====<br />
Detention is carried out for the purpose of within 73 hours, bringing the arrested under detention to court in an expedited proceeding or presenting them for their first judicial questioning or ensuring that person is immediately brought before judicial authority.99 <br />
====Charging instrument====<br />
According to Article 236, the Public Prosecution Service shall issue a writ of indictment within 15 days when sufficient evidence has been gathered; the writ, under the penalty of nullity, shall contain identification of the defendant, the account of the facts, applicable provisions, and date/signature.100 <br />
====Preliminary hearing====<br />
Before trial, the court assesses the indictment and sets a trial date, according to Article 239, once the records are received the judge shall assess the jurisdiction, legitimacy, nullities and other exceptions or any prior issues, may reject a blatantly groundless indictment, or admit the indictment and set a trial date.101 Article 240 specifies what the order admitting the indictment and setting a trial date must contain (appointment of defender if needed, measures, criminal record request) and that it is notified with a copy of the indictment.102 <br />
====Pre-trial motions====<br />
According to Article 239, once the records are received the judge shall assess the jurisdiction, legitimacy, nullities and other exceptions or any prior issues that are likely to impede an immediate assessment of the grounds of action.103 <br />
====Discovery====<br />
According to Article 77, the public prosecutor, the suspect, the defendant and the aggrieved person may have access to the records and obtain a certificate or copy therefrom, subject to authorization rules in paragraphs.104 <br />
===Trial===<br />
====Nature of the trial====<br />
According to Article 245 of the Criminal Procedure Code, the conduct of the hearing and the order of business are the responsibility of the judge, who shall adopt such measures as deemed appropriate and necessary for the smooth running of the hearing, provided they are not inconsistent with any expressed law.105 Article 246 states that the court shall ensure the observance of the adversarial nature of the proceeding, namely before a decision on incidental matters is made and in relation to the presentation or examination of any proof at the hearing, under the penalty of nullity.106 Article 247 provides that hearings shall have a public character, under the penalty of irreparable nullity, and Article 248 establishes that, except as otherwise stated by the law, the proceedings and the production of proofs at the hearing are conducted orally before the court.107 <br />
====Defendant====<br />
According to Article 253 of the Criminal Procedure Code, the presence of the defendant at the hearing is compulsory, except as otherwise stated in the law, and the judge shall take the appropriate and necessary action to prevent the defendant from leaving before the hearing concludes.108 Once questioned about identification, the defendant may be removed from the courtroom for repeated breaches of conduct or when their presence may contribute to inhibiting or intimidating a person who is to make statements.109 Even if removed, the defendant must hear the reading of the sentence.110 <br />
====Lawyers====<br />
Article 249 specifies that the minutes of the hearing must include the identification of the defendant and his or her counsel or defender, along with other procedural participants.111 <br />
====Expert witnesses====<br />
Expert witnesses (religious ministers, lawyers, medical doctors, journalists, and other members of credit institutions) must maintain professional secrecy and may refuse to give a deposition on facts covered by that secrecy.112 The court is allowed to be accompanied by an expert witness per Article 146 of the Criminal Procedure Code, in order to explain the inspection and interpret the facts.113 Experts are appointed in the decision ordering the inspection and shall attend the trial.114 Section VIII describes the procedure for designating experts and the object.115 <br />
====Judges====<br />
According to Article 108 of the Criminal Procedure Code, only the judge or the public prosecutor may declare the nullity or irregularity of a procedural act, and the judge may order such acts to be performed again where necessary.116 Articles 239 assign the judge the responsibility to receive the indictment, verify jurisdiction, rule on nullities or exceptions, and issue the order admitting the indictment and setting the trial date.117 Under Article 250, the judge determines adjournments for rest or refreshment, and may interrupt the hearing if indispensable participants are absent, essential evidence is unavailable, or incidental matters arise.118 Article 253 further requires the judge to prevent the defendant from leaving before the hearing ends and allows the judge to remove the defendant for repeated breaches of conduct or for intimidating witnesses.119 Article 249 requires that hearing minutes include the name and signature of the judge, confirming judicial oversight of the record.120 Finally, Article 278 establishes that the sentence is read at the hearing by the presiding judge after deliberation and voting, and Article 280 requires the judge to explain the sentence to the defendant orally in terms the defendant can understand.121 <br />
====Victims====<br />
According to Article 59 of the Criminal Procedure Code, victims are recognized through the right of the injured party to file a complaint.122 Article 215 further establishes that the right to complain lapses six months from the date of the crime, if the victim dies, or from the date the victim becomes legally competent to.123 <br />
===Sentencing===<br />
Article 281 establishes that once deliberations are complete, the judge drafts the sentence in line with the prevailing opinion. The sentence must be signed by the judge and assistant judges, who may issue separate opinions. It must then be publicly read and explained in court within fifteen days, with the reading serving as official notification to those present.124 <br />
===Appeals===<br />
The Code establishes the principle of maximum admissibility of appeals in Article 287, allowing appeals against court orders, sentences, and decisions unless explicitly prohibited by law, and permitting challenges on both fact and law.125 Article 288 specifies exceptions, such as routine orders, discretionary decisions, minor civil compensation cases, and other situations defined by law.126 Article 289 identifies those eligible to appeal: the public prosecutor, the defendant, and any person fined or whose rights are affected.127 Article 290 provides that an appeal generally covers the entire decision, though in cases of co-defendants it also extends to them unless strictly personal grounds apply.128 Appeals proceed in degrees: Article 291 states that district court decisions go to the Supreme Court of Justice, while decisions from the Supreme Court’s criminal section are reviewed by its full bench, with both fact and law subject to review.129 The scope of appeal may be limited under Article 292 to distinct parts of a decision, such as separating criminal from civil issues or culpability from penalty, but only if they can be adjudicated independently.130 Article 293 protects defendants by prohibiting reformatio in pejus, meaning penalties cannot be increased when only the defendant appeals.131 Articles 294 and 295 allow for waiving or withdrawing an appeal, and provide that certain appeals, particularly those closing a case, must be remitted to the higher court.132 Article 296 lists appeals that must be remitted immediately, such as challenges to restrictive measures, disqualification rulings, or rejected indictments, while Article 297 requires other appeals to be remitted together with the appeal of the final decision.133 Finally, Article 298 explains the effects of appeals: an appeal against a conviction suspends the decision, while others may suspend enforcement if conditions (such as deposits) are met, but most are merely devolutive, passing the case for review without halting enforcement.134 <br />
====Right to counsel====<br />
Pursuant to Article 60 of the Criminal Procedure Code, defendants have the right to a defender appointed by the court.135 <br />
====Ineffective assistance of counsel====<br />
The Criminal Procedure Code does not explicitly mention “ineffective assistance of counsel.” However, Articles 301 provides that appeals may be based on errors of fact or law as well as nullity of procedure, which offers grounds to challenge inadequate representation within the broader framework of procedural errors.136 <br />
====Collateral remedies (habeas etc…)====<br />
Article 103 of the Criminal Procedure Code describes a variety of irreparable nullities while Article 104 describes reparable nullities.137 Immunities and prerogatives established by the law in respect of the duty to witness and the manner and place where a deposition is to be given are applicable in relation to a criminal proceeding.138 Article 205 of the Criminal Procedure Code states that any person who finds themself under unlawful arrest or detention may request the Supreme Court of Justice to grant them a writ of habeas corpus.139 <br />
==Rights in prison==<br />
===Right to humane conditions of confinement===<br />
There are no references to humane conditions of confinement in the Criminal Procedure Code. <br />
===Immigrant’s rights in detention===<br />
Pre-trial detention may be imposed on someone who unlawfully entered or remains on national territory or against whom an extradition or expulsion process has been initiated.140 <br />
===Right to medical care in prison===<br />
Although there is no explicit mention to the right of medical care in prison, pursuant to Article 57 of the Constitution, everyone has the right to health and medical care, and has the responsibility to promote and protect their health.141 <br />
===Right to mental health care===<br />
Article 32 of the Constitution states that in case of danger a result of mental illness, security measures may be successively extended by judicial decision.142 <br />
===Restriction of rights===<br />
Although the code provides for detention order, preventative detention, and security measures, it does not directly list which rights may be restricted in prison. <br />
===Rights of special populations===<br />
====Women====<br />
There are no references to women in the Criminal Procedure Code. <br />
====LGBTQ+ prisoners====<br />
There are no references to LGBTQ+ prisoners in the Criminal Procedure Code. <br />
====Mentally ill prisoners====<br />
According to Article 194 of the Criminal Procedure Code, a person with a mental health disorder, where requirements for pre-trial are met and as long as the disorder persists, be preventatively admitted to a psychiatric hospital or other appropriate establishment.143 <br />
====Juveniles====<br />
According to Article 18 of the Constitution, children are entitled to special protections by the family, community, and state, particularly against abandonment, discrimination, violence, oppression, sexual abuse, and exploitation.144 The Constitution clarifies that this applied to rights enshrined in law and international conventions and children born out of wedlock.145 The Constitution also states that youth initiatives toward national unity, reconstruction, defense, and development will be promoted by the state along with education, health, and vocational training for the youth.146 <br />
==Footnotes==<br />
1 [https://www.cia.gov/the-world-factbook/countries/timor-leste/ Timor-Leste The World Factbook]<br>2 [https://www.cia.gov/the-world-factbook/countries/timor-leste/ Timor-Leste | The World Factbook]<br>3 [https://peacekeeping.un.org/sites/default/files/past/etimor/untaetR/2001-24.pdf Regulation NO. 2001/24 On the Establishment of a Legal Aid Service in East Timor | United Nations]<br>4 [https://peacekeeping.un.org/sites/default/files/past/etimor/untaetR/2001-24.pdf Regulation NO. 2001/24 On the Establishment of a Legal Aid Service in East Timor | United Nations. p.2]<br>5 [https://www.nichibenren.or.jp/library/ja/bar_association/word/data/East_Timor.pdf Information Sheet - [East Timor]]<br>6 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Proiect. Article 37. Section 2]<br>7 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 56, Section 1-4, p.16]<br>8 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 32, Section 1]<br>9 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 53, Section 4, p.16]<br>10 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 29. Section 4]<br>11 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 57, Section 1]<br>12 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 30. Section 3]<br>13 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 30, Section 2]<br>14 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 30]<br>15 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 34, Section 1]<br>16 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 60. Section c. p.17]<br>17 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 60, Section e, p.18]<br>18 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 26. Section 1]<br>19 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 34, Section 3]<br>20 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 16. Section 1]<br>21 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 187, Section 1, p.51]<br>22 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 187. Section 2. p.51]<br>23 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 189, Section 1. p.51]<br>24 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 31. Section 2]<br>25 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 31. Section 4]<br>26 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 247(1) and 248. p.66t]<br>27 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 252. p.67]<br>28 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 246, Section 2. p.51]<br>29 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 250, Section 1 and 5. p.66]<br>30 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 60, Section a, p.17]<br>31 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 40. p.13]<br>32 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 83. Section 1(a-b), p.24]<br>33 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 33, Section 1]<br>34 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 33, Section 2]<br>35 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 33. Section 3]<br>36 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 29, Section 3]<br>37 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 152. Section 1(a-b)]<br>38 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 32, Section 4]<br>39 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 68, Section a-d, p.20]<br>40 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 60, Section h. p.18]<br>41 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 60. Section f. p.18]<br>42 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 34, Section 4]<br>43 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 102, Section 1. p.30]<br>44 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 93. Section a-c. p.27]<br>45 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 93. Section c. p.27]<br>46 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 206, Section 1. p.55]<br>47 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 206, Section 2. p.55]<br>48 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 206 Section 3-4. p.55]<br>49 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 245, Section 1. p.65]<br>50 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 28, Section 1]<br>51 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 40 and 41]<br>52 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 42]<br>53 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 43]<br>54 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 45]<br>55 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 46]<br>56 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 47]<br>57 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 48]<br>58 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 147. Section 1-3]<br>59 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 53. Section 2. p.16]<br>60 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 172. Section 1. p.46]<br>61 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 172. Section 2. p.46]<br>62 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 218, Section 1. p.59]<br>63 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 220. Section 1. p.59]<br>64 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 205, Section 2. p.55]<br>65 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 194, Section 1, p.52]<br>66 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 194, Section 2, p.52]<br>67 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 195, Section 1. p.52]<br>68 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project. Article 37. Section 2]<br>69 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 168. Section 1-2. p.45]<br>70 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 169, Section 1-6, p.45]<br>71 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 195, Section 1. p.53]<br>72 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 62. Section 2. p.18]<br>73 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 59. Section 4. p.17]<br>74 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 56, Section 2. p.16]<br>75 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 110. Section 1-2. p.32]<br>76 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 111. p.32]<br>77 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 112. Section 1-2, p.32]<br>78 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 108, Section 1-3, p.31]<br>79 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 163, Section 1. p.44]<br>80 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government. Article 163, Section 3. p.44]<br>81 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 64, Section 1, p.19]<br>82 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 63, Section 1, p.19]<br>83 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 62, Section 3, p.18]<br>84 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government.]<br>85 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 64, Section 1, p.19]<br>86 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 63, Section 1, p.19]<br>87 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 62, Section 3, p.18]<br>88 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 267, Section 4, p.71]<br>89 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 110, p.58]<br>90 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 59, Section 4, p.17]<br>91 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government]<br>92 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 77, Section 2-3, p.22]<br>93 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 239, Section 1(a), p.64]<br>94 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 240, p.64]<br>95 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government]<br>96 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 249, Section (1)(c), p.66]<br>97 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 253, Section 3-4, p.67]<br>98 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 249, Section 1(h), p.66]<br>99 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 253, p.67]<br>100 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 250, Section 2, p.66]<br>101 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government]<br>102 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 289, p.77]<br>103 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 289, Section 2, p.76]<br>104 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 289, p.76]<br>105 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 103-104, p.30]<br>106 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 301, Section c, p.79]<br>107 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government]<br>108 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 194, Section 2, p.52]<br>109 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 205, Section 1, p.55]<br>110 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government]<br>111 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 32, Section 2]<br>112 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 57, Section 1]<br>113 [https://www.wto.org/english/thewto_e/acc_e/tls_e/WTACCTLS5_LEG_51.pdf Decree-Law No. 13/2005 of Approving the Criminal Procedure Code | Democratic Republic of Timor-Lest Government, Article 194, Section 4, p.52]<br>114 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 18]<br>115 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 18]<br>116 [https://www.constituteproject.org/constitution/East_Timor_2002 Timor-Leste 2002 | Constitute Project, Article 19]<br></div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Criminal_Justice_Systems_Around_the_World&diff=381679Criminal Justice Systems Around the World2025-08-22T09:01:20Z<p>IBJadmin: /* Country Pages */</p>
<hr />
<div>Criminal justice systems can be loosely classified as either common, civil, Islamic or socialist law in nature. However, today many jurisdictions have adopted hybrid models that combine elements of various legal systems. Many of these systems share a common set of [[Core Values | core values]]. In addition, most criminal justice systems have adopted a [[Legality Principle | legality principle]]. Almost every criminal justice system is made of of similar [[Actors in the Criminal Justice System | actors]].<br />
<br />
==Country Pages==<br />
<div style="float: left; width: 33%"><br />
<br />
*[[Afghanistan]]<br />
*[[Albania]]<br />
*[[Algeria]]<br />
*[[Andorra]]<br />
*[[Angola]]<br />
*[[Antigua and Barbuda]]<br />
*[[Argentina]]<br />
*Armenia<br />
*[[Australia]]<br />
*[[Austria]]<br />
*[[Azerbaijan]]<br />
*[[The Bahamas]]<br />
*Bahrain<br />
*[[Bangladesh]]<br />
*[[Barbados]]<br />
*[[Belarus]]<br />
*[[Belgium]]<br />
*[[Belize]]<br />
*[[Benin]]<br />
*[[Bhutan]]<br />
*[[Bolivia]]<br />
*[[Bosnia and Herzegovina]]<br />
*[[Botswana]]<br />
*[[Brazil]]<br />
*[[Brunei]]<br />
*[[Bulgaria]]<br />
*[[Burkina Faso]]<br />
*[[Burundi]] <br />
*[[Cambodia]]<br />
*[[Cameroon]]<br />
*[[Canada]]<br />
*[[Cape Verde]]<br />
*[[République Centrafricaine|Central African Republic]]<br />
*[[Chad]]<br />
*[[Chile]]<br />
*[[China]]<br />
**[[Hong Kong]]<br />
**[[Taiwan]]<br />
*[[Colombia]]<br />
*[[Comoros]]<br />
*[[Congo, Democratic Republic of the]]<br />
*[[ République du Congo (Congo-Brazzaville)|Congo, Republic of the]]<br />
*[[Costa Rica]]<br />
*[[Croatia]]<br />
*[[Cuba]]<br />
*[[Cyprus]]<br />
*[[Czech Republic]]<br />
*[[Denmark]]<br />
*Djibouti<br />
*Dominica<br />
*[[Dominican Republic]]<br />
*[[East Timor]]<br />
*[[Ecuador]]<br />
*[[Egypt]]<br />
*[[El Salvador]]<br />
*[[Equatorial Guinea]]<br />
*[[Eritrea]]<br />
*Estonia<br />
*[[Ethiopia]]<br />
*Fiji<br />
*[[Finland]]<br />
*[[France]]<br />
**French Guiana<br />
**[[French Polynesia]]<br />
*[[Gabon]]<br />
*[[Gambia, The]]<br />
*[[Georgia]]<br />
<br />
</div><div style="float: left; width:33%"><br />
<br />
*[[Germany]]<br />
*[[Ghana]]<br />
*[[Greece]]<br />
*Grenada<br />
*[[Guatemala]]<br />
*[[Guinea]]<br />
*[[Guinea-Bissau]]<br />
*[[Guyana]]<br />
*Haiti<br />
*[[Honduras]]<br />
*[[Hungary]]<br />
*Iceland<br />
*[[India]]<br />
*[[Indonesia]]<br />
*[[Iran]]<br />
*[[Iraq]]<br />
*[[Ireland]]<br />
*[[Island of Guam]]<br />
*[[Israel]]<br />
*[[Italy]]<br />
*[[Côte d’Ivoire|Ivory Coast]]<br />
*[[Jamaica]]<br />
*[[Japan]]<br />
*Jordan<br />
*[[Kazakhstan]]<br />
*[[Kenya]]<br />
*Kiribati<br />
*[[Korea, North]]<br />
*[[South Korea|Korea, South]]<br />
*Kosovo<br />
*Kuwait<br />
*[[Kyrgyzstan]]<br />
*[[Laos]]<br />
*Latvia<br />
*[[Lebanon]]<br />
*[[Lesotho]]<br />
*[[Liberia]]<br />
*Libya<br />
*[[Liechtenstein]]<br />
*[[Lithuania]]<br />
*[[Luxembourg]]<br />
*Macedonia<br />
*[[Madagascar]]<br />
*[[Malawi]]<br />
*[[Malaysia]]<br />
*[[Maldives]]<br />
*[[Mali]]<br />
*[[Malta]]<br />
*Marshall Islands<br />
*[[Mauritania]]<br />
*[[Mauritius]]<br />
*[[Mexico]]<br />
*Micronesia<br />
*[[Moldova]]<br />
*[[Monaco]]<br />
*[[Mongolia]]<br />
*[[Montenegro]] <br />
*[[Morocco]]<br />
*[[Mozambique]]<br />
*[[Myanmar]]<br />
*[[Namibia]]<br />
*Nauru<br />
*[[Nepal]]<br />
*[[Netherlands]]<br />
*[[New Zealand]]<br />
*[[Nicaragua]]<br />
*[[Niger]]<br />
*[[Nigeria]]<br />
*Norway<br />
*[[Oman]]<br />
<br />
</div><div style="float: left; width: 33%"><br />
<br />
*[[Pakistan]]<br />
*Palau<br />
*Palestine<br />
*[[Panama]]<br />
*[[Papua New Guinea]]<br />
*[[Paraguay]]<br />
*[[Peru]]<br />
*[[Philippines]]<br />
*[[Poland]]<br />
*[[Portugal]]<br />
*[[Qatar]]<br />
*[[Romania]]<br />
*[[Russia]]<br />
*[[Rwanda]]<br />
*Saint Kitts and Nevis<br />
*[[Saint Lucia]]<br />
*Saint Vincent and the Grenadines<br />
*Samoa<br />
*San Marino<br />
*[[São Tomé and Príncipe]]<br />
*[[Saudi Arabia]]<br />
*[[Senegal]]<br />
*[[Serbia]]<br />
*[[Seychelles]]<br />
*[[Sierra Leone]]<br />
*[[Singapore]]<br />
*[[Slovakia]]<br />
*Slovenia<br />
*[[Solomon Islands]]<br />
*[[Somalia]]<br />
*[[South Africa]]<br />
*[[South Sudan]]<br />
*[[Spain]]<br />
*[[Sri Lanka]]<br />
*[[Sudan]]<br />
*Suriname<br />
*[[Swaziland]]<br />
*[[Sweden]]<br />
*[[Switzerland]]<br />
*[[Syria]]<br />
*[[Tajikistan]]<br />
*[[Tanzania]] <br />
**[[Zanzibar]]<br />
*[[Thailand]]<br />
*[[Togo]]<br />
*[[Tonga]]<br />
*[[Trinidad and Tobago]]<br />
*[[Tunisia]]<br />
*[[Turkey]]<br />
*[[Turkmenistan]]<br />
*[[Tuvalu]] <br />
*[[Uganda]] <br />
*[[Ukraine]]<br />
*[[United Arab Emirates]]<br />
*United Kingdom<br />
**[[England and Wales]]<br />
**[[Scotland]]<br />
*[[United States]]<br />
**[[Puerto Rico]]<br />
*[[Uruguay]] <br />
*[[Uzbekistan]]<br />
*[[Vanuatu]]<br />
*[[Venezuela]]<br />
*[[Vietnam]] <br />
*[[Yemen]]<br />
*[[Zambia]]<br />
*[[Zimbabwe]] <br />
<br />
<br />
<br />
</div><br />
<br />
{{Languages|Criminal Justice Systems Around the World}}<br />
<br />
==We need your help==<br />
Can you assist the creation of a country-page? Email elearning@ibj.org.<br />
<br />
----<br />
<br />
See [[Legal Aid Systems and Supporting NGOs around the world]]</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Malta&diff=381678Malta2025-08-18T09:55:47Z<p>IBJadmin: /* Police procedures */ Fix formatting errors</p>
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<div><br />
{{Languages|English}}<br />
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<div class="box" style="padding: 40px; font-size: 1.5em; font-family: Arial, sans-serif; line-height: 1.5; border: 3px solid yellow; background-color: #FFFF00; text-align: center; margin: 30px;"><br />
⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>.<br />
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<br />
{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;"> Legal Resources for Malta </h2><br />
* Constitution of Malta <ref>https://www.refworld.org/legal/legislation/natlegbod/1964/en/104412</ref><br />
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<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources </h2> <br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
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<br />
==Introduction==<br />
===Quick summary of the context (including the country's recent history)===<br />
Malta's legal system is a unique hybrid of civil and common law, shaped by its complex history of successive rulers. Its foundations lie in the continental civil law tradition, heavily influenced by Roman law and later codified under the Napoleonic Code during the brief French occupation in the 18th century. When Malta became a British colony in 1814, elements of English common law were integrated into the pre-existing civil law framework, particularly in constitutional, criminal, and procedural matters. This blend remains today, with substantive private law (contracts, property, family) largely civil law-based, and public law (criminal procedure, evidence, constitutional safeguards) reflecting common law principles. Since gaining independence in 1964, Malta has developed its own constitution, enshrining the separation of powers, an independent judiciary, and fundamental human rights. In 2004 Malta joined the EU and EU law subsequently became directly applicable to Malta. This has led to an increased focus on and enforcement of human and legal rights within the Maltese judicial system to bring Malta into closer compliance with EU and international standards.<br />
===Type of system (common law; civil law; hybrid)===<br />
The Maltese legal system is primarily based on a civil law system with significant influences from the British common law system. The Maltese Constitution is the primary source of law and supreme law of the land in Malta, with additional legislation enacted by the Parliament of Malta. Malta's court system is divided into four courts: The Constitutional Court, Civil Court, Commercial Court, and Criminal Court. The Criminal Court presides over trials by jury.<br />
===The legal aid situation in the country===<br />
====State Sponsored legal aid====<br />
All persons charged with a criminal offense have the right to legal representation. If the individual charged cannot afford legal representation as required by the circumstances, they are entitled to legal representation at public expense. Low-income individuals can apply for legal aid through the government online. In civil cases there is a means and merits test to apply. There is no means test for criminal cases. The government agency Legal Aid Malta was established in 2014 to help provide legal representation to those who require it.<br />
====Number of lawyers (criminal/civil) if known====<br />
There are over 1,000 registered advocates (lawyers) in Malta.<br />
===Sources of defendant's rights?===<br />
====National Sources of Defendant's rights====<br />
The Maltese Constitution and Malta Criminal Code provide the basis for defendant's rights under Maltese law.<br />
====International Sources of defendant's rights====<br />
Sources of international law which are in effect in Malta include the European Convention on Human Rights and the European Community Law.<br />
==Rights of the Accused==<br />
===Right Against Unlawful Searches and Seizures===<br />
No property of any kind shall be taken possession of except where allowed by law. Reasonable suspicion is required for search and seizure, except in cases of arrest. When conducting an arrest, police may only conduct searches for safety, evidence, or to prevent the arrestee from escaping. Only prohibited items, or items connected to or suspected to be connected to a crime can be seized.<br />
===Right Against Unlawful Arrests and Detention===<br />
No person shall be deprived of personal liberty except in cases authorized by law. Any person arrested or detained shall be informed at the time of arrest of the reasons for detainment, in a language they understand. They shall be brought before a court within 48 hours of arrest. Any person who is unlawfully arrested or detained shall be entitled to compensation from that person.<br />
===Right Not to be Tortured or Ill-Treated===<br />
In accordance with the EU Charter of Fundamental rights, torture and ill treatment are prohibited in Malta. Further, no person shall be subjected to inhuman or degrading punishment or treatment.<br />
===Right to Medical Care===<br />
Malta offers free access to medical facilities to all EU citizens on presentation of a valid European Health Insurance Card (EHIC).<br />
===Right to be Informed of Charges===<br />
Arrests are invalid unless the person arrested is informed, at the time of arrest, of the charges against them. Every person charged with a criminal offense shall be informed in writing, in a language which they understand, and in detail, the nature of the offense charged. When a person who is charged or accused is first brought before the Court of Magistrates the court shall have the charges read out to the person charged or accused, as well as a summary of evidence produced by the prosecuting or arraigning officer on the reasons supporting the charges.<br />
===Right to Presumption of Innocence===<br />
Per the Constitution, anyone charged with a criminal offense shall be presumed innocent until they have been proved or pleaded guilty.<br />
===Right Against Self-Incrimination===<br />
When questioning the accused they are not required to provide any self-incriminating information. The court will explain this right to the accused. Further, no person charged with a crime can be compelled to give evidence in their own trial.<br />
===Right to Counsel and Effective Assistance===<br />
All persons charged are entitled to a legal representative, a person entitled to practice law as an advocate in Malta.<br />
===Right to a Present a Defense===<br />
Every person charged of an offense shall be given adequate time and facilities to prepare their defense. They are permitted to defend themselves in person or by a legal representative. If they cannot afford a legal representative, they are entitled to one by law paid for by the state.<br />
===Right to Due Process===<br />
All persons are entitled to a public and fair hearing by an independent and impartial court.<br />
===Right to Equal Protection of the Laws===<br />
All persons are equal before the law and enjoy equal rights. All persons are entitled to equal protection without discrimination.<br />
===Right to Bail===<br />
The court may grant bail after taking into consideration all of the circumstances of the case, the nature or seriousness of the offense, the character, antecedents, associations, and community ties of the accused, as well as any other information which appears relevant. If it is satisfied that the accused will appear when ordered, will not leave Malta, will observe all conditions set by the court, will not interfere with any witnesses, and will not commit any other offense bail may be granted.<br />
===Right Against Ex Post Facto Prosecution===<br />
No person shall be held guilty of a crime which did not constitute a crime at the time of offense. There shall be no penalty or punishment for such an offense.<br />
===Right Against Double Jeopardy===<br />
No person who has been tried by any competent court for a criminal offense and either convicted or acquitted shall be tried again for that offence or for any other criminal offence of which they could have been convicted at the trial. The only exception to this is upon the order of a superior court made in the course of appeal or review proceedings relating to the conviction or acquittal. No person shall be tried for a criminal offense if they can show that they were pardoned for that offense.<br />
===Right to a Fair Trial===<br />
====Generally====<br />
Whenever a person is charged, they shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law. Except where agreed to by all parties, the court proceedings shall be held in public.<br />
====Right to a Trial by Jury====<br />
Criminal courts shall consist of one judge sitting with a jury for every offense. The jury shall decide on whether the accused is guilty or not guilty. The accused may, within 10 days of receiving notice of service, request a trial without a jury.<br />
====Right to a Speedy Trial====<br />
Whenever a person is charged with a criminal offence they shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by the law (Constitution, Article 39).<br />
====Right to an Impartial Judge====<br />
The Constitution of Malta, Article 39, provides that all persons have a right to a fair hearing by an independent and impartial court. The European Convention on Human Rights, Article 6, to which Malta is also a party, also enforces the right to a fair and impartial trial. The Maltese Code of Organization and Civil Procedure, Chapter 12, Section 734 allows parties to a case to challenge a judge and allows judges to recuse themselves in cases where there may be a conflict of interests.<br />
===Right to Language Interpretation===<br />
Suspects and accused shall be provided with a Letter of Rights in a language they understand. If you do not speak or understand the language spoken by the police or other authorities, you have the right to be assisted by an interpreter free of charge. The interpreter may also speak with the representative lawyer and must keep the information conveyed private. Individuals also have the right to receive a translation of the European Arrest Warrant in a language they understand. It is the duty of the executive police and court to ascertain whether the accused or suspect can understand the language of the courts and investigators and whether an interpreter is required. Suspects and accused have the right to receive a translation of all relevant passages of essential documents. In some cases, an oral translation may be provided. The Maltese language shall be the language of the courts, and all proceedings shall be conducted in Maltese, with provisions for the Use of English Language Act of 1965. Where the person charged does not understand the language of the proceedings or evidence given, they shall be interpreted either by the court or a sworn interpreter. Where all person charged are English-speaking, all proceedings shall be conducted in English. Where there are multiple people being charged, some of whom speak Maltese and some of whom speak English, the Maltese speaking accused must consent to proceedings being conducted in English. Where none of the parties are Maltese-speaking or English-speaking the court may elect to conduct proceedings in English. Where the court has ordered proceedings to be conducted in English, all subsequent stages of the proceedings shall also be conducted in English.<br />
===Right to Habeas Corpus===<br />
Per the Maltese Constitution, no person may be deprived of personal liberty or imprisoned for arbitrary reasons. Cases in which deprivation of liberty is authorized are as follows:<br />
<li>When executing a sentence for a criminal conviction <br />
<li>By court order to ensure the person fulfills a legally imposed obligation <br />
<li>for the purpose of being brought before a court <br />
<li>upon reasonable suspicion of the person having committed or being about to commit a criminal offense <br />
<li>For persons under 18, for the purposes of education and welfare <br />
<li>To prevent the spread of an infectious disease <br />
<li>In cases where a person is, or is reasonably suspected to be, of unsound mind, addicted to drugs or alcohol, or a vagrant, for the purpose of providing care, treatment, or protecting the community <br />
<li>For the purpose of preventing the unlawful entry of a person into Malta, or to affect the expulsion, extradition, or other lawful removal of a person from Malta <br />
===Capital Punishment===<br />
Capital punishment was formally abolished in 2000.<br />
===Right to Appeal===<br />
A person convicted on indictment may appeal to the Court of Criminal Appeal against their conviction in all cases and may appeal against the sentence passed on their conviction unless the sentence is one fixed by law. Article 500, Malta Criminal Code.<br />
==Rights of Counsel==<br />
===Right to Provide Representation===<br />
Under Article 6 of the European Convention on Human Rights, to which Malta is a party, everyone charged with a criminal offense has the right to be defended by legal assistance of their choosing. Additionally, they have the right to be provided free legal defense if they lack the means to pay for it themselves. Malta also ensures low-income individuals have access to legal aid.<br />
===Right of Access to the Client===<br />
Under Article 11(4) of the Maltese Constitution all persons arrested or detained have the right of access to a lawyer. The Maltese Criminal Code, Article 355AU provides that the accused will have access to a lawyer without und delay before any questioning by police or law enforcement, during any evidence-gathering acts, or immediately upon deprivation of liberty. Additionally, the accused have the right to meet in private with the lawyer either face-to-face or over the phone and the right to have their lawyer present when being questioned. Since Legal Notice 35 of 2021, attorneys must be allowed private consolation with their client for up to one hour preceding police questioning.<br />
===Right to Information===<br />
Under Articles 534A-AG, suspects must receive a letter of rights which includes the right to access essential documents necessary for preparing a defense. Under Article 6 of the ECHR, defendants must be informed promptly and in detail of the nature and cause of accusations and must be given access to evidence necessary to challenge the prosecution's case.<br />
===Right to Confidential Communication with the Client===<br />
Under Article 350(1) of the Maltese Criminal Code, communication between attorneys and their clients is protected by legal professional privilege. Maltese courts have no authority to compel disclosure of privileged communications without the client's explicit consent.<br />
==Means of Protecting or Enforcing Rights==<br />
===Exclusionary Rule===<br />
The Maltese Code of Organization and Civil Procedure requires that evidence be relevant and the best available (Articles 558-560), however there is no general prohibition on evidence obtained illegally. Courts may still admit illegally obtained evidence on a case-by-case basis if it is relevant and material.<br />
===Nullity of Procedure===<br />
Per the Maltese Criminal Code, judgements must contain the facts, finding of guilt or innocence, the law applied, and the punishment, if applicable. Failure to meet these requirements may invalidate the judgement. Article 382. Per the Code of Organization and Civil Procedure, judicial acts which are not in accordance with the form prescribed by law, or which lack the required formalities are null. Article 789.<br />
===Motions===<br />
Defense may move to have evidence deemed inadmissible or may raise issues regarding procedural errors which will be assessed on a case-by-case basis.<br />
===Contempt===<br />
Per the Maltese Code of Organization and Civil Procedure, Art. 997 contempt can result in up to 1 month imprisonment and/or a fine. The Maltese Criminal Code also includes provisions which prohibit and enforce punishments for insults and threats against judges, magistrates, and jurors.<br />
==Pretrial Procedures==<br />
===Police procedures===<br />
====Complaint/information====<br />
Upon receipt of any information or complaint requiring proceedings, the executive police shall inform the Court of Magistrates as soon as possible to receive necessary instructions for proceedings. In cases where the complaint provides sufficient evidence to support an arrest, the police must inform the court and create a report. In the following cases, police may institute proceedings without a complaint:<br />
<li>In cases of crimes for which the law does not expressly provide that a complaint by a private party is necessary <br />
<li>Any offence consisting in the carrying of prohibited weapons <br />
<li>Any offense against any law relating to fishing, vehicles, boats, art, or trade <br />
<li>Any offence committed against an individual who is incapable of instituting criminal proceedings due to physical or mental infirmity <br />
<li>Offenses affecting public order or the community in general <br />
<li>Cases of domestic violence <br />
Criminal proceedings shall not be instituted except upon complaint by private party in the following cases:<br />
<li>carnal knowledge accompanied with violence <br />
<li>abduction <br />
<li>violent indecent assault <br />
<li>theft of electricity <br />
====Arrest, Search and Seizure Laws====<br />
<b>Stops and Frisks:</b> Police officers in any public place or place of public admittance may search any person or vehicle if there is reasonable suspicion that the search will discover prohibited items, or evidence of a crime. Police may subsequently seize anything discovered during the search which is prohibited or connected to a crime. Searches cannot be conducted by police officers of the opposite sex. Police officers not in uniform cannot conduct searches unless they present their police identification card.<br />
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<b>Arrests:</b> Where there are lawful grounds for arrest, the police may request an arrest warrant from a Magistrate. Any police officer may arrest, without a warrant, anyone who is in the act of committing or has just committed a crime, or whom they reasonably suspect has just committed or is about to commit a crime. An arrest is not valid if the person being arrested is not informed that they are under arrest. Police are prohibited from using any harshness during the arrest. Any person erroneously arrested or arrested without warrant shall be immediately released. Any person arrested who has not been brought before a court within 48 hours shall be released.<br />
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<b>Pre-trial detention:</b> If the grounds for custody have ceased to apply, if the person was arrested without warrant, or failed to be brought before a court within 48 hours, they shall be immediately released from custody. The police have a duty to inform anyone arrested or detained of their right to inform a friend or relative of their detainment. They shall be allowed to consult privately with an attorney as soon as practicable and upon request.<br />
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<b>Searches:</b> A police officer may immediately conduct a search of arrestees in cases where the officer has reasonable grounds to believe the arrested person may be a danger to himself or others; to search for anything the arrested person may use to escape from custody; or to search for evidence related to the offense. Police are authorized to search, without a warrant, any premises, house, building, or enclosure used, occupied, or controlled (even temporarily) by the person who is under arrest if they have reasonable grounds to suspect that there is evidence that relates to the crime. This search must be limited to the extent reasonably necessary to discover such evidence. Police are not authorized to search any premises, house, building, or enclosure without a warrant in cases where an arrest is not taking place.<br />
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<b>Seizures:</b> Police may, when lawfully on any premises, seize anything on the premises if they have reasonable suspicion that it was obtained as the result of, or in connection to a criminal offense, as necessary to prevent it from being concealed, lost, damaged, altered or destroyed. Police must issue a receipt of the item seized to the person on the premises or in control of them. Anything lawfully seized by police may be retained as long as necessary in the circumstances.<br />
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<b>Enforcing the Rules (Exclusionary Rule, Nullity, and other procedures to protect against illegal police procedures):</b> Malta is a part of the European Convention on human rights which ensures access to a fair, impartial trial. In accordance with this directive, Maltese courts have increasingly shown the capacity and will to enforce penalties and exclude evidence which were collected through illegal or improper police procedures. Lawyers who witness illegal police investigative procedures must report this to the magistrate within 24 hours. The magistrate will then enquire, and act accordingly given the situation.<br />
====Lineups and other identification procedures====<br />
<b>Lineups:</b> As a rule, it is not necessary that a witness identify a subject or item from a lineup for identification purposes, unless the court in that particular case deems such a course of action necessary in the given circumstances.<br />
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====Interrogation====<br />
<b>Before formal charge in court:</b> Before interrogation, individuals who have been arrested or detained have the right to speak with a lawyer for maximum one hour. A police officer in the grade of Superintendent or higher may authorize the delay of this right but not for a period longer than 36 hours. Police may immediately interrogate arrestees or detainees, but they retain the right to remain silent and the right to have legal representation. Police are obligated to assist you in contacting a lawyer but will not provide the specific name of a lawyer. In certain cases, arrestees/detainees may be entitled to free legal aid and police will help determine whether this is applicable. Article 6 of the European Convention, to which Malta is a party, grants all persons the right to assistance of a lawyer during questioning.<br />
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<b>After defendant is formally charged:</b> Any questioning after formal charges must be judicially authorized or conducted during court proceedings.<br />
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==Court Procedures==<br />
===Pre-Trial===<br />
====Enforcing the rules (procedures to protect against illegal interrogation)====<br />
There are multiple cases in which the Maltese Constitutional court has excluded evidence or imposed fines on the prosecution for interrogation violations. In 2016 a court ordered the Commissioner of Police and Attorney General to pay a fine for allowing a statement made without assistance of a lawyer to be used against a defendant. In 2017 a Maltese court prohibited a statement made without legal assistance from being admitted as evidence during trial. While there are not codified enforcement procedures in civil law, the courts have shown increased strictness in enforcing these procedures by citing Article 6 of the European Convention.<br />
====Initial Court Appearance====<br />
The Maltese Court of Magistrates has jurisdiction over the initial arraignment. The court will read the specific charges and confirm whether the accused wants/has legal assistance. Under Maltese law and the ECHR Article 6 the accused has the right to be informed in detail and in writing of the nature of the offense, to adequate time and facilities to prepare their defense, to legal representation, and to free assistance of an interpreter, if needed.<br />
====Charging Instrument====<br />
Under Section 360(2) of the Criminal Code the charge sheet must accurately reflect the facts of the offense. If there are errors the court must dismiss the case.<br />
====Preliminary Hearing====<br />
Cases will be subject to magisterial inquiry as an investigative authority. At this inquiry the presiding magistrate will examine evidence, witness statements, and witnesses and the accused may be cross-examined and questioned by the court. The magistrate will then decide whether there is sufficient evidence to commit the accused to trial or if the evidence is insufficient and the case must be dismissed.<br />
====Pre-Trial Motions====<br />
No later than 15 working days from the date of service, the accused shall file all motions regarding the admissibility of evidence, indicating witnesses, and produce all documents and other exhibits they intend to use at trial. The accused shall be notified of the trial date at least 20 days prior to allow them to prepare a defense. The accused may request further extensions to this 20-day period. Pre-trial motions include:<br />
<li>Request for Bail, Art. 575 Criminal Code <br />
<li>Plea of Nullity, Art.382, Art, 793 COCP <br />
<li>Request for Disclosure of Evidence, grounded in fair trial rights in accordance with ECHR Art. 6 <br />
<li>Request to declare evidence inadmissible which will be assessed on a case-by-case basis <br />
<li>Request for expert appointment <br />
====Discovery====<br />
The record of the inquiry, all documents and exhibits filed in the registry of the court by either party to the case shall be accessible to both the prosecution and the defense. No witness, documents, or exhibits may be used in court unless filed with the registry.<br />
===Trial===<br />
====Nature of the Trial====<br />
There are three types of criminal trials in Malta.<br />
<li>Summary Proceedings (Magistrate's Court): This will be used in cases of minor offenses.<br />
<li>Hybrid of Enhanced Summary Proceedings: Structure will mirror summary proceedings but with the involvement of the Attorney General. This is reserved for slightly more serious offenses.<br />
<li>Jury Trial: Applies to serious offenses beyond the jurisdiction of the Magistrate Court. This will consist of a judge and a jury of nine lay persons.<br />
====Defendant====<br />
The court shall ask the accused to verify their name, age, place of birth and abode, trade, profession, or calling, the same and surname of their father and whether their father is alive or dead. The court shall also ask the accused how they wish to reply to the charge. Before asking any of these questions, the court shall explain to the accused the nature of the charge and inform them that they are not obliged to answer any of the questions, nor incriminate themselves, and that they are entitled to legal assistance.<br />
====Lawyers====<br />
Lawyers for the defense may be present at all proceedings. Defendants may choose their legal counsel, and their attorneys must be given sufficient time and facilities for case preparation. During proceedings, lawyers must have full access to evidence and materials necessary for representation. Lawyers for both the defense and prosecution are authorized to examine or cross-examine witnesses, and to produce evidence, provided that this evidence has been deemed admissible by the court. For prosecution, the attorney general will represent the state in hybrid proceedings and jury trials.<br />
====Expert Witnesses====<br />
In all cases where special skill or knowledge is required, a reference to experts shall be ordered. The court shall give experts necessary time and documents to allow them to make their report. Experts are authorized to receive documents and examine witnesses under oath. Upon completion of their work experts shall make a report of their findings either orally or in writing, according to the directions of the court. The parties, court, and in some cases jurors, may require experts to further elucidate their reports or clarify them.<br />
====Judges====<br />
A single magistrate will handle both inquiry preliminary proceedings and summary trials. As an investigating magistrate the judge will compile evidence, record witness statements, appoint experts, and determine whether there is sufficient evidence to commit the accused to a trial. In summary proceedings, magistrates hear evidence, question witnesses, apply the law, and deliver judgments for crimes carrying up to 6 years imprisonment. In jury trials there will be one presiding judge. The judge's role includes ruling on preliminary pleas, guiding the jury, ensuring procedural fairness, and deciding on sentencing.<br />
====Victims====<br />
The Victims of Crime Act of 2015 allows victims access to free legal aid, to be kept informed about the progress of court proceedings, and to seek compensation from offenders. Victims have the right to receive a written acknowledgement of a complaint and to receive ongoing informational updates about the status of their case.<br />
===Sentencing===<br />
When the hearing is concluded, if conveniently practicable, the court shall deliver judgement on the sentence on the same day. Sentencing is largely based on judicial discretion but there are ongoing efforts to align Malta with broader EU sentencing guidelines and standards.<br />
===Appeals===<br />
====Right to Counsel====<br />
A person who wants to appeal their judgement from the Court of Magistrates with legal aid may do so. They must inform their assigned legal aid attorney on the same day that the decision is reached. The lawyer must then file the appeal within 12 working days. The convicted person may also ask the presiding judge to assign legal counsel or contact Legal Aid Malta.<br />
====Ineffective Assistance of Counsel====<br />
This is not recognized as grounds for appeal under Maltese law.<br />
====Other Grounds for Appeal====<br />
The Maltese Criminal Code, Chapter 9, the European Convention on Human Rights Articles 6 and 13, and Legal Aid Malta Criminal Appeals Process outline the following grounds for appeal:<br />
<li>Trial court wrongly interpreted or applied the law <br />
<li>Error in fact or evaluation of evidence <br />
<li>Procedural irregularity or breach of fair trial <br />
<li>Miscarriage of justice <br />
<li>Disproportionate or error in sentencing <br />
<li>Jury misconduct or irregularities <br />
<li>Judge error <br />
<li>Denial of fair trial due to no counsel at interrogation stage <br />
<li>Systemic failure of legal aid <br />
====Collateral Remedies====<br />
All persons have the right to initiate a constitutional application before the Civil Court in situations where their fundamental Constitutional Rights have been breached or violated during criminal proceedings.<br />
==Rights in prison==<br />
===Right to Humane Conditions of Confinement===<br />
Malta is bound by all EU and European Convention rules regarding safe and human prison treatment. In general, conditions of confinement must respect the human dignity of inmates and promote rehabilitation.<br />
===Immigrant’s Rights in Detention===<br />
The European Court of Human Rights has confronted Malta on several occasions over the past decade for its detention of asylum seekers. According to the UNHCR immigrants have the right to remain in Malta, to receive procedural information, to legal assistance, to confidentiality, and to contact the UNHCR. Individuals detained under Article 10 of the Immigration Act (those who arrive without permission) may be removed from the country.<br />
===Right to Medical Care in Prison===<br />
Prisoners in Malta are entitled to the same level of free health services as the general public. Prisoners must be examined within 24 hours of admission. Prisons must have equipped infirmaries and prisoners must be transferred to the hospital if necessary. In 2025 a report by the Council of Europe noted that healthcare conditions in Maltese prisons are improving and include well-equipped facilities and improving staffing levels and prompt access to medical care. The Council of Europe outlines that prisons must have integrated and comprehensive medical care.<br />
===Right to Mental Health Care===<br />
Access to mental health care in prisons falls under the same guiding principles as access to general healthcare.<br />
===Restriction of Rights===<br />
While imprisoned, individuals cannot vote, cannot hold public office, and cannot enter into contracts which require their presence or signatures outside of prison. They maintain their right to due process, legal representation, and a trial with appeals as allowed in the code of criminal procedure and constitution.<br />
===Rights of Special Populations===<br />
====Women====<br />
Women are housed in a separate female division in Malta. They generally have fewer resources and smaller facilities due to smaller numbers of women being incarcerated compared to men. Searches and sensitive procedures on women prisoners can be conducted by women staff only. Mothers can apply for special visiting arrangements with children but long-term family accommodation is not provided.<br />
====GLBT Prisoners====<br />
Prisoners are assigned to prison divisions based on legal gender as stated on official documents, not based on sex characteristics. Those in transition must make a sworn declaration of their gender. Inmates have the right to pursue legal gender recognition and access to corresponding medical care while in prison. As a testament to Malta’s commitment to protecting its LGBT+ inmates, in 2018 seven transgender inmates won a constitutional case after being forced to live in the male prison section despite identifying as women. They were awarded damages and reassigned to the correct prison section.<br />
====Mentally Ill Prisoners====<br />
Mentally ill prisoners may be transferred to mental health facilities on the advice of prison medical officials.<br />
====Juveniles====<br />
Per Maltese Prison regulations, juveniles under 21 years of age must be housed separately from adult prisoners. Male and female juveniles must also be housed separately. Juveniles have the right to rest, education, leisure, physical development, and family engagement, with parameters.<br />
==Resources==<br />
"Advocates in Malta." Lawyers in Malta, www.lawyersinmalta.com/advocates-in-malta/. Accessed 15 Aug. 2025.<br />
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Amnesty International. Amnesty International Report 2000. 2000, www.amnesty.org/en/wp-content/uploads/2021/06/act530032000en.pdf.<br />
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"Constitution of Malta." Kunsill Nazzjonali tal-Ilsien Malti, riformakostituzzjonali.gov.mt/documents/constitution-of-malta/?lang=en. Accessed 15 Aug. 2025.<br />
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"Court awards €4,500 to man who was refused legal aid during interrogation." MaltaToday.com.mt, 19 Dec. 2015, www.maltatoday.com.mt/news/court_and_police/61207/court_awards_4500_to_man_who_was_refused_legal_aid_during_interrogation.<br />
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"Criminal Code of Malta." International Committee of the Red Cross, 2015, ihl-databases.icrc.org/en/national-practice/criminal-code-2015.<br />
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"Criminal Legal Aid Cases." Legal Aid Malta, legalaidmalta.gov.mt/Criminal-Legal-Aid-Cases. Accessed 15 Aug. 2025.<br />
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"Defining Legal Aid." Legal Aid Malta, legalaidmalta.gov.mt/Defining-Legal-Aid. Accessed 15 Aug. 2025.<br />
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"Healthcare Entitlement." Gov.mt, www.gov.mt/en/Life%20Events/Pages/Healthy%20Living/Healthcare-entitlement.aspx. Accessed 15 Aug. 2025.<br />
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"The Law System in Malta." Chamber of Advocates, www.avukati.org/public/law-system-in-malta/. Accessed 15 Aug. 2025.<br />
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"Legal Aid Referral System." Ministry for Justice, Equality and Governance, justiceministry.gov.mt/en/legalaidmalta/Pages/Legal%20Aid%20Referral%20System.aspx. Accessed 15 Aug. 2025.<br />
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"Legal Rights And Protections In Malta." USCIS Guide, www.uscisguide.com/international/legal-rights-and-protections-in-malta/. Accessed 15 Aug. 2025.<br />
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Mifsud, Cedric. "Strict interpretation of the law when challenging a judge." Mifsud & Mifsud Advocates, 23 May 2018, www.mifsudadvocates.com.mt/strict-interpretation-of-the-law-when-challenging-a-judge/.<br />
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"New law gives crime victims legal aid right." Times of Malta, 1 Nov. 2015, www.timesofmalta.com/article/new-law-gives-crime-victims-legal-aid-right.564676.<br />
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"New rules on police interrogations come into force." Times of Malta, 1 June 2016, www.timesofmalta.com/article/new-rules-on-police-interrogations-come-into-force.645164.<br />
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"Statements by suspects not assisted by a lawyer 'cannot be used as evidence'." Times of Malta, 18 July 2017, timesofmalta.com/article/statements-by-suspects-not-assisted-by-a-lawyer-cannot-be-used-as.651801.<br />
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Tabone, Marlon. "The main components of the Maltese legal system and the primary provisions of Maltese." Medium, 30 July 2017, medium.com/@marlontabone/the-main-components-of-the-maltese-legal-system-and-the-primary-provisions-of-maltese-6380b10fb33.<br />
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"Understanding the Maltese Legal System." CA Advocates, ca.mt/understanding-the-maltese-legal-system/. Accessed 15 Aug. 2025.<br />
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"Use of English Language in the Courts." University of SETON HALL, www.uniset.ca/microstates2/malta-use-of-english-act.pdf. Accessed 15 Aug. 2025.<br />
<br />
Vella, Gabriella. "The preliminary plea of the prosecution for the trial to proceed on the basis of the records of the inquiry: a critical analysis." University of Malta, 2018, www.um.edu.mt/library/oar/handle/123456789/29413.</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Malta&diff=381677Malta2025-08-18T09:53:21Z<p>IBJadmin: Fixed formatting errors - Kevin</p>
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==Introduction==<br />
===Quick summary of the context (including the country's recent history)===<br />
Malta's legal system is a unique hybrid of civil and common law, shaped by its complex history of successive rulers. Its foundations lie in the continental civil law tradition, heavily influenced by Roman law and later codified under the Napoleonic Code during the brief French occupation in the 18th century. When Malta became a British colony in 1814, elements of English common law were integrated into the pre-existing civil law framework, particularly in constitutional, criminal, and procedural matters. This blend remains today, with substantive private law (contracts, property, family) largely civil law-based, and public law (criminal procedure, evidence, constitutional safeguards) reflecting common law principles. Since gaining independence in 1964, Malta has developed its own constitution, enshrining the separation of powers, an independent judiciary, and fundamental human rights. In 2004 Malta joined the EU and EU law subsequently became directly applicable to Malta. This has led to an increased focus on and enforcement of human and legal rights within the Maltese judicial system to bring Malta into closer compliance with EU and international standards.<br />
===Type of system (common law; civil law; hybrid)===<br />
The Maltese legal system is primarily based on a civil law system with significant influences from the British common law system. The Maltese Constitution is the primary source of law and supreme law of the land in Malta, with additional legislation enacted by the Parliament of Malta. Malta's court system is divided into four courts: The Constitutional Court, Civil Court, Commercial Court, and Criminal Court. The Criminal Court presides over trials by jury.<br />
===The legal aid situation in the country===<br />
====State Sponsored legal aid====<br />
All persons charged with a criminal offense have the right to legal representation. If the individual charged cannot afford legal representation as required by the circumstances, they are entitled to legal representation at public expense. Low-income individuals can apply for legal aid through the government online. In civil cases there is a means and merits test to apply. There is no means test for criminal cases. The government agency Legal Aid Malta was established in 2014 to help provide legal representation to those who require it.<br />
====Number of lawyers (criminal/civil) if known====<br />
There are over 1,000 registered advocates (lawyers) in Malta.<br />
===Sources of defendant's rights?===<br />
====National Sources of Defendant's rights====<br />
The Maltese Constitution and Malta Criminal Code provide the basis for defendant's rights under Maltese law.<br />
====International Sources of defendant's rights====<br />
Sources of international law which are in effect in Malta include the European Convention on Human Rights and the European Community Law.<br />
==Rights of the Accused==<br />
===Right Against Unlawful Searches and Seizures===<br />
No property of any kind shall be taken possession of except where allowed by law. Reasonable suspicion is required for search and seizure, except in cases of arrest. When conducting an arrest, police may only conduct searches for safety, evidence, or to prevent the arrestee from escaping. Only prohibited items, or items connected to or suspected to be connected to a crime can be seized.<br />
===Right Against Unlawful Arrests and Detention===<br />
No person shall be deprived of personal liberty except in cases authorized by law. Any person arrested or detained shall be informed at the time of arrest of the reasons for detainment, in a language they understand. They shall be brought before a court within 48 hours of arrest. Any person who is unlawfully arrested or detained shall be entitled to compensation from that person.<br />
===Right Not to be Tortured or Ill-Treated===<br />
In accordance with the EU Charter of Fundamental rights, torture and ill treatment are prohibited in Malta. Further, no person shall be subjected to inhuman or degrading punishment or treatment.<br />
===Right to Medical Care===<br />
Malta offers free access to medical facilities to all EU citizens on presentation of a valid European Health Insurance Card (EHIC).<br />
===Right to be Informed of Charges===<br />
Arrests are invalid unless the person arrested is informed, at the time of arrest, of the charges against them. Every person charged with a criminal offense shall be informed in writing, in a language which they understand, and in detail, the nature of the offense charged. When a person who is charged or accused is first brought before the Court of Magistrates the court shall have the charges read out to the person charged or accused, as well as a summary of evidence produced by the prosecuting or arraigning officer on the reasons supporting the charges.<br />
===Right to Presumption of Innocence===<br />
Per the Constitution, anyone charged with a criminal offense shall be presumed innocent until they have been proved or pleaded guilty.<br />
===Right Against Self-Incrimination===<br />
When questioning the accused they are not required to provide any self-incriminating information. The court will explain this right to the accused. Further, no person charged with a crime can be compelled to give evidence in their own trial.<br />
===Right to Counsel and Effective Assistance===<br />
All persons charged are entitled to a legal representative, a person entitled to practice law as an advocate in Malta.<br />
===Right to a Present a Defense===<br />
Every person charged of an offense shall be given adequate time and facilities to prepare their defense. They are permitted to defend themselves in person or by a legal representative. If they cannot afford a legal representative, they are entitled to one by law paid for by the state.<br />
===Right to Due Process===<br />
All persons are entitled to a public and fair hearing by an independent and impartial court.<br />
===Right to Equal Protection of the Laws===<br />
All persons are equal before the law and enjoy equal rights. All persons are entitled to equal protection without discrimination.<br />
===Right to Bail===<br />
The court may grant bail after taking into consideration all of the circumstances of the case, the nature or seriousness of the offense, the character, antecedents, associations, and community ties of the accused, as well as any other information which appears relevant. If it is satisfied that the accused will appear when ordered, will not leave Malta, will observe all conditions set by the court, will not interfere with any witnesses, and will not commit any other offense bail may be granted.<br />
===Right Against Ex Post Facto Prosecution===<br />
No person shall be held guilty of a crime which did not constitute a crime at the time of offense. There shall be no penalty or punishment for such an offense.<br />
===Right Against Double Jeopardy===<br />
No person who has been tried by any competent court for a criminal offense and either convicted or acquitted shall be tried again for that offence or for any other criminal offence of which they could have been convicted at the trial. The only exception to this is upon the order of a superior court made in the course of appeal or review proceedings relating to the conviction or acquittal. No person shall be tried for a criminal offense if they can show that they were pardoned for that offense.<br />
===Right to a Fair Trial===<br />
====Generally====<br />
Whenever a person is charged, they shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law. Except where agreed to by all parties, the court proceedings shall be held in public.<br />
====Right to a Trial by Jury====<br />
Criminal courts shall consist of one judge sitting with a jury for every offense. The jury shall decide on whether the accused is guilty or not guilty. The accused may, within 10 days of receiving notice of service, request a trial without a jury.<br />
====Right to a Speedy Trial====<br />
Whenever a person is charged with a criminal offence they shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by the law (Constitution, Article 39).<br />
====Right to an Impartial Judge====<br />
The Constitution of Malta, Article 39, provides that all persons have a right to a fair hearing by an independent and impartial court. The European Convention on Human Rights, Article 6, to which Malta is also a party, also enforces the right to a fair and impartial trial. The Maltese Code of Organization and Civil Procedure, Chapter 12, Section 734 allows parties to a case to challenge a judge and allows judges to recuse themselves in cases where there may be a conflict of interests.<br />
===Right to Language Interpretation===<br />
Suspects and accused shall be provided with a Letter of Rights in a language they understand. If you do not speak or understand the language spoken by the police or other authorities, you have the right to be assisted by an interpreter free of charge. The interpreter may also speak with the representative lawyer and must keep the information conveyed private. Individuals also have the right to receive a translation of the European Arrest Warrant in a language they understand. It is the duty of the executive police and court to ascertain whether the accused or suspect can understand the language of the courts and investigators and whether an interpreter is required. Suspects and accused have the right to receive a translation of all relevant passages of essential documents. In some cases, an oral translation may be provided. The Maltese language shall be the language of the courts, and all proceedings shall be conducted in Maltese, with provisions for the Use of English Language Act of 1965. Where the person charged does not understand the language of the proceedings or evidence given, they shall be interpreted either by the court or a sworn interpreter. Where all person charged are English-speaking, all proceedings shall be conducted in English. Where there are multiple people being charged, some of whom speak Maltese and some of whom speak English, the Maltese speaking accused must consent to proceedings being conducted in English. Where none of the parties are Maltese-speaking or English-speaking the court may elect to conduct proceedings in English. Where the court has ordered proceedings to be conducted in English, all subsequent stages of the proceedings shall also be conducted in English.<br />
===Right to Habeas Corpus===<br />
Per the Maltese Constitution, no person may be deprived of personal liberty or imprisoned for arbitrary reasons. Cases in which deprivation of liberty is authorized are as follows:<br />
<li>When executing a sentence for a criminal conviction <br />
<li>By court order to ensure the person fulfills a legally imposed obligation <br />
<li>for the purpose of being brought before a court <br />
<li>upon reasonable suspicion of the person having committed or being about to commit a criminal offense <br />
<li>For persons under 18, for the purposes of education and welfare <br />
<li>To prevent the spread of an infectious disease <br />
<li>In cases where a person is, or is reasonably suspected to be, of unsound mind, addicted to drugs or alcohol, or a vagrant, for the purpose of providing care, treatment, or protecting the community <br />
<li>For the purpose of preventing the unlawful entry of a person into Malta, or to affect the expulsion, extradition, or other lawful removal of a person from Malta <br />
===Capital Punishment===<br />
Capital punishment was formally abolished in 2000.<br />
===Right to Appeal===<br />
A person convicted on indictment may appeal to the Court of Criminal Appeal against their conviction in all cases and may appeal against the sentence passed on their conviction unless the sentence is one fixed by law. Article 500, Malta Criminal Code.<br />
==Rights of Counsel==<br />
===Right to Provide Representation===<br />
Under Article 6 of the European Convention on Human Rights, to which Malta is a party, everyone charged with a criminal offense has the right to be defended by legal assistance of their choosing. Additionally, they have the right to be provided free legal defense if they lack the means to pay for it themselves. Malta also ensures low-income individuals have access to legal aid.<br />
===Right of Access to the Client===<br />
Under Article 11(4) of the Maltese Constitution all persons arrested or detained have the right of access to a lawyer. The Maltese Criminal Code, Article 355AU provides that the accused will have access to a lawyer without und delay before any questioning by police or law enforcement, during any evidence-gathering acts, or immediately upon deprivation of liberty. Additionally, the accused have the right to meet in private with the lawyer either face-to-face or over the phone and the right to have their lawyer present when being questioned. Since Legal Notice 35 of 2021, attorneys must be allowed private consolation with their client for up to one hour preceding police questioning.<br />
===Right to Information===<br />
Under Articles 534A-AG, suspects must receive a letter of rights which includes the right to access essential documents necessary for preparing a defense. Under Article 6 of the ECHR, defendants must be informed promptly and in detail of the nature and cause of accusations and must be given access to evidence necessary to challenge the prosecution's case.<br />
===Right to Confidential Communication with the Client===<br />
Under Article 350(1) of the Maltese Criminal Code, communication between attorneys and their clients is protected by legal professional privilege. Maltese courts have no authority to compel disclosure of privileged communications without the client's explicit consent.<br />
==Means of Protecting or Enforcing Rights==<br />
===Exclusionary Rule===<br />
The Maltese Code of Organization and Civil Procedure requires that evidence be relevant and the best available (Articles 558-560), however there is no general prohibition on evidence obtained illegally. Courts may still admit illegally obtained evidence on a case-by-case basis if it is relevant and material.<br />
===Nullity of Procedure===<br />
Per the Maltese Criminal Code, judgements must contain the facts, finding of guilt or innocence, the law applied, and the punishment, if applicable. Failure to meet these requirements may invalidate the judgement. Article 382. Per the Code of Organization and Civil Procedure, judicial acts which are not in accordance with the form prescribed by law, or which lack the required formalities are null. Article 789.<br />
===Motions===<br />
Defense may move to have evidence deemed inadmissible or may raise issues regarding procedural errors which will be assessed on a case-by-case basis.<br />
===Contempt===<br />
Per the Maltese Code of Organization and Civil Procedure, Art. 997 contempt can result in up to 1 month imprisonment and/or a fine. The Maltese Criminal Code also includes provisions which prohibit and enforce punishments for insults and threats against judges, magistrates, and jurors.<br />
==Pretrial Procedures==<br />
===Police procedures===<br />
====Complaint/information====<br />
Upon receipt of any information or complaint requiring proceedings, the executive police shall inform the Court of Magistrates as soon as possible to receive necessary instructions for proceedings. In cases where the complaint provides sufficient evidence to support an arrest, the police must inform the court and create a report. In the following cases, police may institute proceedings without a complaint:<br />
<li>In cases of crimes for which the law does not expressly provide that a complaint by a private party is necessary <br />
<li>Any offence consisting in the carrying of prohibited weapons <br />
<li>Any offense against any law relating to fishing, vehicles, boats, art, or trade <br />
<li>Any offence committed against an individual who is incapable of instituting criminal proceedings due to physical or mental infirmity <br />
<li>Offenses affecting public order or the community in general <br />
<li>Cases of domestic violence <br />
Criminal proceedings shall not be instituted except upon complaint by private party in the following cases:<br />
<li>carnal knowledge accompanied with violence <br />
<li>abduction <br />
<li>violent indecent assault <br />
<li>theft of electricity <br />
====Arrest, Search and Seizure Laws====<br />
<li>Stops and Frisks: Police officers in any public place or place of public admittance may search any person or vehicle if there is reasonable suspicion that the search will discover prohibited items, or evidence of a crime. Police may subsequently seize anything discovered during the search which is prohibited or connected to a crime. Searches cannot be conducted by police officers of the opposite sex. Police officers not in uniform cannot conduct searches unless they present their police identification card.<br />
<li>Arrests: Where there are lawful grounds for arrest, the police may request an arrest warrant from a Magistrate. Any police officer may arrest, without a warrant, anyone who is in the act of committing or has just committed a crime, or whom they reasonably suspect has just committed or is about to commit a crime. An arrest is not valid if the person being arrested is not informed that they are under arrest. Police are prohibited from using any harshness during the arrest. Any person erroneously arrested or arrested without warrant shall be immediately released. Any person arrested who has not been brought before a court within 48 hours shall be released.<br />
<li>Pre-trial detention: If the grounds for custody have ceased to apply, if the person was arrested without warrant, or failed to be brought before a court within 48 hours, they shall be immediately released from custody. The police have a duty to inform anyone arrested or detained of their right to inform a friend or relative of their detainment. They shall be allowed to consult privately with an attorney as soon as practicable and upon request.<br />
<li>Searches: A police officer may immediately conduct a search of arrestees in cases where the officer has reasonable grounds to believe the arrested person may be a danger to himself or others; to search for anything the arrested person may use to escape from custody; or to search for evidence related to the offense. Police are authorized to search, without a warrant, any premises, house, building, or enclosure used, occupied, or controlled (even temporarily) by the person who is under arrest if they have reasonable grounds to suspect that there is evidence that relates to the crime. This search must be limited to the extent reasonably necessary to discover such evidence. Police are not authorized to search any premises, house, building, or enclosure without a warrant in cases where an arrest is not taking place.<br />
<li>Seizures: Police may, when lawfully on any premises, seize anything on the premises if they have reasonable suspicion that it was obtained as the result of, or in connection to a criminal offense, as necessary to prevent it from being concealed, lost, damaged, altered or destroyed. Police must issue a receipt of the item seized to the person on the premises or in control of them. Anything lawfully seized by police may be retained as long as necessary in the circumstances.<br />
<li>Enforcing the Rules (Exclusionary Rule, Nullity, and other procedures to protect against illegal police procedures): Malta is a part of the European Convention on human rights which ensures access to a fair, impartial trial. In accordance with this directive, Maltese courts have increasingly shown the capacity and will to enforce penalties and exclude evidence which were collected through illegal or improper police procedures. Lawyers who witness illegal police investigative procedures must report this to the magistrate within 24 hours. The magistrate will then enquire, and act accordingly given the situation.<br />
====Lineups and other identification procedures====<br />
<li>Lineups: As a rule, it is not necessary that a witness identify a subject or item from a lineup for identification purposes, unless the court in that particular case deems such a course of action necessary in the given circumstances.<br />
====Interrogation====<br />
<li>Before formal charge in court: Before interrogation, individuals who have been arrested or detained have the right to speak with a lawyer for maximum one hour. A police officer in the grade of Superintendent or higher may authorize the delay of this right but not for a period longer than 36 hours. Police may immediately interrogate arrestees or detainees, but they retain the right to remain silent and the right to have legal representation. Police are obligated to assist you in contacting a lawyer but will not provide the specific name of a lawyer. In certain cases, arrestees/detainees may be entitled to free legal aid and police will help determine whether this is applicable. Article 6 of the European Convention, to which Malta is a party, grants all persons the right to assistance of a lawyer during questioning.<br />
<li>After defendant is formally charged: Any questioning after formal charges must be judicially authorized or conducted during court proceedings.<br />
==Court Procedures==<br />
===Pre-Trial===<br />
====Enforcing the rules (procedures to protect against illegal interrogation)====<br />
There are multiple cases in which the Maltese Constitutional court has excluded evidence or imposed fines on the prosecution for interrogation violations. In 2016 a court ordered the Commissioner of Police and Attorney General to pay a fine for allowing a statement made without assistance of a lawyer to be used against a defendant. In 2017 a Maltese court prohibited a statement made without legal assistance from being admitted as evidence during trial. While there are not codified enforcement procedures in civil law, the courts have shown increased strictness in enforcing these procedures by citing Article 6 of the European Convention.<br />
====Initial Court Appearance====<br />
The Maltese Court of Magistrates has jurisdiction over the initial arraignment. The court will read the specific charges and confirm whether the accused wants/has legal assistance. Under Maltese law and the ECHR Article 6 the accused has the right to be informed in detail and in writing of the nature of the offense, to adequate time and facilities to prepare their defense, to legal representation, and to free assistance of an interpreter, if needed.<br />
====Charging Instrument====<br />
Under Section 360(2) of the Criminal Code the charge sheet must accurately reflect the facts of the offense. If there are errors the court must dismiss the case.<br />
====Preliminary Hearing====<br />
Cases will be subject to magisterial inquiry as an investigative authority. At this inquiry the presiding magistrate will examine evidence, witness statements, and witnesses and the accused may be cross-examined and questioned by the court. The magistrate will then decide whether there is sufficient evidence to commit the accused to trial or if the evidence is insufficient and the case must be dismissed.<br />
====Pre-Trial Motions====<br />
No later than 15 working days from the date of service, the accused shall file all motions regarding the admissibility of evidence, indicating witnesses, and produce all documents and other exhibits they intend to use at trial. The accused shall be notified of the trial date at least 20 days prior to allow them to prepare a defense. The accused may request further extensions to this 20-day period. Pre-trial motions include:<br />
<li>Request for Bail, Art. 575 Criminal Code <br />
<li>Plea of Nullity, Art.382, Art, 793 COCP <br />
<li>Request for Disclosure of Evidence, grounded in fair trial rights in accordance with ECHR Art. 6 <br />
<li>Request to declare evidence inadmissible which will be assessed on a case-by-case basis <br />
<li>Request for expert appointment <br />
====Discovery====<br />
The record of the inquiry, all documents and exhibits filed in the registry of the court by either party to the case shall be accessible to both the prosecution and the defense. No witness, documents, or exhibits may be used in court unless filed with the registry.<br />
===Trial===<br />
====Nature of the Trial====<br />
There are three types of criminal trials in Malta.<br />
<li>Summary Proceedings (Magistrate's Court): This will be used in cases of minor offenses.<br />
<li>Hybrid of Enhanced Summary Proceedings: Structure will mirror summary proceedings but with the involvement of the Attorney General. This is reserved for slightly more serious offenses.<br />
<li>Jury Trial: Applies to serious offenses beyond the jurisdiction of the Magistrate Court. This will consist of a judge and a jury of nine lay persons.<br />
====Defendant====<br />
The court shall ask the accused to verify their name, age, place of birth and abode, trade, profession, or calling, the same and surname of their father and whether their father is alive or dead. The court shall also ask the accused how they wish to reply to the charge. Before asking any of these questions, the court shall explain to the accused the nature of the charge and inform them that they are not obliged to answer any of the questions, nor incriminate themselves, and that they are entitled to legal assistance.<br />
====Lawyers====<br />
Lawyers for the defense may be present at all proceedings. Defendants may choose their legal counsel, and their attorneys must be given sufficient time and facilities for case preparation. During proceedings, lawyers must have full access to evidence and materials necessary for representation. Lawyers for both the defense and prosecution are authorized to examine or cross-examine witnesses, and to produce evidence, provided that this evidence has been deemed admissible by the court. For prosecution, the attorney general will represent the state in hybrid proceedings and jury trials.<br />
====Expert Witnesses====<br />
In all cases where special skill or knowledge is required, a reference to experts shall be ordered. The court shall give experts necessary time and documents to allow them to make their report. Experts are authorized to receive documents and examine witnesses under oath. Upon completion of their work experts shall make a report of their findings either orally or in writing, according to the directions of the court. The parties, court, and in some cases jurors, may require experts to further elucidate their reports or clarify them.<br />
====Judges====<br />
A single magistrate will handle both inquiry preliminary proceedings and summary trials. As an investigating magistrate the judge will compile evidence, record witness statements, appoint experts, and determine whether there is sufficient evidence to commit the accused to a trial. In summary proceedings, magistrates hear evidence, question witnesses, apply the law, and deliver judgments for crimes carrying up to 6 years imprisonment. In jury trials there will be one presiding judge. The judge's role includes ruling on preliminary pleas, guiding the jury, ensuring procedural fairness, and deciding on sentencing.<br />
====Victims====<br />
The Victims of Crime Act of 2015 allows victims access to free legal aid, to be kept informed about the progress of court proceedings, and to seek compensation from offenders. Victims have the right to receive a written acknowledgement of a complaint and to receive ongoing informational updates about the status of their case.<br />
===Sentencing===<br />
When the hearing is concluded, if conveniently practicable, the court shall deliver judgement on the sentence on the same day. Sentencing is largely based on judicial discretion but there are ongoing efforts to align Malta with broader EU sentencing guidelines and standards.<br />
===Appeals===<br />
====Right to Counsel====<br />
A person who wants to appeal their judgement from the Court of Magistrates with legal aid may do so. They must inform their assigned legal aid attorney on the same day that the decision is reached. The lawyer must then file the appeal within 12 working days. The convicted person may also ask the presiding judge to assign legal counsel or contact Legal Aid Malta.<br />
====Ineffective Assistance of Counsel====<br />
This is not recognized as grounds for appeal under Maltese law.<br />
====Other Grounds for Appeal====<br />
The Maltese Criminal Code, Chapter 9, the European Convention on Human Rights Articles 6 and 13, and Legal Aid Malta Criminal Appeals Process outline the following grounds for appeal:<br />
<li>Trial court wrongly interpreted or applied the law <br />
<li>Error in fact or evaluation of evidence <br />
<li>Procedural irregularity or breach of fair trial <br />
<li>Miscarriage of justice <br />
<li>Disproportionate or error in sentencing <br />
<li>Jury misconduct or irregularities <br />
<li>Judge error <br />
<li>Denial of fair trial due to no counsel at interrogation stage <br />
<li>Systemic failure of legal aid <br />
====Collateral Remedies====<br />
All persons have the right to initiate a constitutional application before the Civil Court in situations where their fundamental Constitutional Rights have been breached or violated during criminal proceedings.<br />
==Rights in prison==<br />
===Right to Humane Conditions of Confinement===<br />
Malta is bound by all EU and European Convention rules regarding safe and human prison treatment. In general, conditions of confinement must respect the human dignity of inmates and promote rehabilitation.<br />
===Immigrant’s Rights in Detention===<br />
The European Court of Human Rights has confronted Malta on several occasions over the past decade for its detention of asylum seekers. According to the UNHCR immigrants have the right to remain in Malta, to receive procedural information, to legal assistance, to confidentiality, and to contact the UNHCR. Individuals detained under Article 10 of the Immigration Act (those who arrive without permission) may be removed from the country.<br />
===Right to Medical Care in Prison===<br />
Prisoners in Malta are entitled to the same level of free health services as the general public. Prisoners must be examined within 24 hours of admission. Prisons must have equipped infirmaries and prisoners must be transferred to the hospital if necessary. In 2025 a report by the Council of Europe noted that healthcare conditions in Maltese prisons are improving and include well-equipped facilities and improving staffing levels and prompt access to medical care. The Council of Europe outlines that prisons must have integrated and comprehensive medical care.<br />
===Right to Mental Health Care===<br />
Access to mental health care in prisons falls under the same guiding principles as access to general healthcare.<br />
===Restriction of Rights===<br />
While imprisoned, individuals cannot vote, cannot hold public office, and cannot enter into contracts which require their presence or signatures outside of prison. They maintain their right to due process, legal representation, and a trial with appeals as allowed in the code of criminal procedure and constitution.<br />
===Rights of Special Populations===<br />
====Women====<br />
Women are housed in a separate female division in Malta. They generally have fewer resources and smaller facilities due to smaller numbers of women being incarcerated compared to men. Searches and sensitive procedures on women prisoners can be conducted by women staff only. Mothers can apply for special visiting arrangements with children but long-term family accommodation is not provided.<br />
====GLBT Prisoners====<br />
Prisoners are assigned to prison divisions based on legal gender as stated on official documents, not based on sex characteristics. Those in transition must make a sworn declaration of their gender. Inmates have the right to pursue legal gender recognition and access to corresponding medical care while in prison. As a testament to Malta’s commitment to protecting its LGBT+ inmates, in 2018 seven transgender inmates won a constitutional case after being forced to live in the male prison section despite identifying as women. They were awarded damages and reassigned to the correct prison section.<br />
====Mentally Ill Prisoners====<br />
Mentally ill prisoners may be transferred to mental health facilities on the advice of prison medical officials.<br />
====Juveniles====<br />
Per Maltese Prison regulations, juveniles under 21 years of age must be housed separately from adult prisoners. Male and female juveniles must also be housed separately. Juveniles have the right to rest, education, leisure, physical development, and family engagement, with parameters.<br />
==Resources==<br />
"Advocates in Malta." Lawyers in Malta, www.lawyersinmalta.com/advocates-in-malta/. Accessed 15 Aug. 2025.<br />
<br />
Amnesty International. Amnesty International Report 2000. 2000, www.amnesty.org/en/wp-content/uploads/2021/06/act530032000en.pdf.<br />
<br />
"Constitution of Malta." Kunsill Nazzjonali tal-Ilsien Malti, riformakostituzzjonali.gov.mt/documents/constitution-of-malta/?lang=en. Accessed 15 Aug. 2025.<br />
<br />
"Court awards €4,500 to man who was refused legal aid during interrogation." MaltaToday.com.mt, 19 Dec. 2015, www.maltatoday.com.mt/news/court_and_police/61207/court_awards_4500_to_man_who_was_refused_legal_aid_during_interrogation.<br />
<br />
"Criminal Code of Malta." International Committee of the Red Cross, 2015, ihl-databases.icrc.org/en/national-practice/criminal-code-2015.<br />
<br />
"Criminal Legal Aid Cases." Legal Aid Malta, legalaidmalta.gov.mt/Criminal-Legal-Aid-Cases. Accessed 15 Aug. 2025.<br />
<br />
"Defining Legal Aid." Legal Aid Malta, legalaidmalta.gov.mt/Defining-Legal-Aid. Accessed 15 Aug. 2025.<br />
<br />
"Healthcare Entitlement." Gov.mt, www.gov.mt/en/Life%20Events/Pages/Healthy%20Living/Healthcare-entitlement.aspx. Accessed 15 Aug. 2025.<br />
<br />
"The Law System in Malta." Chamber of Advocates, www.avukati.org/public/law-system-in-malta/. Accessed 15 Aug. 2025.<br />
<br />
"Legal Aid Referral System." Ministry for Justice, Equality and Governance, justiceministry.gov.mt/en/legalaidmalta/Pages/Legal%20Aid%20Referral%20System.aspx. Accessed 15 Aug. 2025.<br />
<br />
"Legal Rights And Protections In Malta." USCIS Guide, www.uscisguide.com/international/legal-rights-and-protections-in-malta/. Accessed 15 Aug. 2025.<br />
<br />
Mifsud, Cedric. "Strict interpretation of the law when challenging a judge." Mifsud & Mifsud Advocates, 23 May 2018, www.mifsudadvocates.com.mt/strict-interpretation-of-the-law-when-challenging-a-judge/.<br />
<br />
"New law gives crime victims legal aid right." Times of Malta, 1 Nov. 2015, www.timesofmalta.com/article/new-law-gives-crime-victims-legal-aid-right.564676.<br />
<br />
"New rules on police interrogations come into force." Times of Malta, 1 June 2016, www.timesofmalta.com/article/new-rules-on-police-interrogations-come-into-force.645164.<br />
<br />
"Statements by suspects not assisted by a lawyer 'cannot be used as evidence'." Times of Malta, 18 July 2017, timesofmalta.com/article/statements-by-suspects-not-assisted-by-a-lawyer-cannot-be-used-as.651801.<br />
<br />
Tabone, Marlon. "The main components of the Maltese legal system and the primary provisions of Maltese." Medium, 30 July 2017, medium.com/@marlontabone/the-main-components-of-the-maltese-legal-system-and-the-primary-provisions-of-maltese-6380b10fb33.<br />
<br />
"Understanding the Maltese Legal System." CA Advocates, ca.mt/understanding-the-maltese-legal-system/. Accessed 15 Aug. 2025.<br />
<br />
"Use of English Language in the Courts." University of SETON HALL, www.uniset.ca/microstates2/malta-use-of-english-act.pdf. Accessed 15 Aug. 2025.<br />
<br />
Vella, Gabriella. "The preliminary plea of the prosecution for the trial to proceed on the basis of the records of the inquiry: a critical analysis." University of Malta, 2018, www.um.edu.mt/library/oar/handle/123456789/29413.</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Malta&diff=381676Malta2025-08-18T09:45:20Z<p>IBJadmin: First iteration of Malta DefenseWiki - written by Kristin, uploaded by Kevin</p>
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<br />
==Introduction==<br />
===Quick summary of the context (including the country’s recent history)===<br />
Malta’s legal system is a unique hybrid of civil and common law, shaped by its complex history of successive rulers. Its foundations lie in the continental civil law tradition, heavily influenced by Roman law and later codified under the Napoleonic Code during the brief French occupation in the 18th century. When Malta became a British colony in 1814, elements of English common law were integrated in the pre-existing civil law framework, particularly in constitutional, criminal, and procedural matters. This blend remains today, with substantive private law (contracts, property, family) largely civil law-based, and public law (criminal procedure, evidence, constitutional safeguards) reflecting common law principles. Since gaining independence in 1964, Malta has developed its own constitution, enshrining the separation of powers, an independent judiciary, and fundamental human rights. In 2004 Malta joined the EU and EU law subsequently became directly applicable to Malta. This has led to an increased focus on and enforcement of human and legal rights within the Maltese judicial system to bring Malta into closer compliance with EU and international standards.<br />
<br />
===Type of system (common law; civil law; hybrid)===<br />
The Maltese legal system is primarily based on a civil law system with significant influences from the British common law system. The Maltese Constitution is the primary source of law and supreme law of the land in Malta, with additional legislation enacted by the Parliament of Malta. Malta’s court system is divided into four courts: The Constitutional Court, Civil Court, Commercial Court, and Criminal Court. The Criminal Court presides over trials by jury.<br />
<br />
===The legal aid situation in the country===<br />
====State Sponsored legal aid====<br />
All persons charged with a criminal offense have the right to legal representation. If the individual charged cannot afford legal representation as required by the circumstances, they are entitled to legal representation at public expense. Low-income individuals can apply for legal aid through the government online. In civil cases there is a mean and merits test to apply. There is no means test for criminal cases. The government agency Legal Aid Malta was established in 2014 to help provide legal representation to those who require it.<br />
<br />
===Number of lawyers (criminal/civil) if known===<br />
There are over 1,000 registered advocates (lawyers) in Malta.<br />
<br />
==Sources of defendant’s rights?==<br />
===National Sources of Defendant’s rights===<br />
The Maltese Constitution and Malta Criminal Code provide the basis for defendant’s rights under Maltese law.<br />
<br />
===International Sources of defendant’s rights===<br />
Sources of internation law which are in effect in Malta include the European Convention on Human Rights and the European Community Law.<br />
<br />
==Rights of the Accused==<br />
===Right Against Unlawful Searches and Seizures===<br />
No property of any kind shall be taken possession of except where allowed by law. Reasonable suspicion is required for search and seizure, except in cases of arrest. When conducting an arrest, police may only conduct searches for safety, evidence, or to prevent the arrestee from escaping. Only prohibited items, or items connected to or suspected to be connected to a crime can be seized.<br />
<br />
===Right Against Unlawful Arrests and Detention===<br />
No person shall be deprived of personal liberty except in cases authorized by law. Any person arrested for detained shall be informed at the time of arrest of the reasons for detainment, in a language they understand. They shall be brought before a court within 48 hours of arrest. Any person who is unlawfully arrested or detained shall be entitles to compensation from that person.<br />
<br />
===Right Not to be Tortured or Ill-Treated===<br />
In accordance with the EU Charter of Fundamental rights, torture and ill treatment are prohibited in Malta. Further, no person shall be subjected to inhuman or degrading punishment or treatment.<br />
<br />
===Right to Medical Care===<br />
Malta offers free access to medical facilities to all EU citizens on presentation of a valid European Health Insurance Card (EHIC).<br />
<br />
===Right to be Informed of Charges===<br />
Arrests are invalid unless the person arrested is informed, at the time of arrest, of the charges against them. Every person charged with a criminal offense shall be informed in writing, in a language which they understand, and in detail, the nature of the offense charged. When a person who is charged or accused is first brought before the Court of Magistrates the court shall have the charges read out to the person charged or accused, as well as a summary of evidence produced by the prosecuting or arraigning officer on the reasons supporting the charges.<br />
<br />
===Right to Presumption of Innocence===<br />
Per the Constitution, anyone charged with a criminal offense shall be presumed innocent until they have been proved or pleaded guilty.<br />
<br />
===Right Against Self-Incrimination===<br />
When questioning the accused they are not required to provide any self-incriminating information. The court will explain this right to the accused. Further, no person charged with a crime can be compelled to give evidence in their own trial.<br />
<br />
===Right to Counsel and Effective Assistance===<br />
All persons charged are entitled to a legal representative, a person entitled to practice law as an advocate in Malta.<br />
<br />
===Right to a Present a Defense===<br />
Everyone person charged of an offense shall be given adequate time and facilities to prepare their defense. They are permitted to defend themselves in person or by a legal representative. If they cannot afford a legal representative, they are entitled to one by law paid for by the state.<br />
<br />
===Right to Due Process===<br />
All persons are entitled to a public and fair hearing by an independent and impartial court.<br />
<br />
===Right to Equal Protection of the Laws===<br />
All persons are equal before the law and enjoy equal rights. All persons are entitled to equal protection without discrimination.<br />
<br />
===Right to Bail===<br />
The court may grant bail after taking into consideration all of the circumstances of the case, the nature or seriousness of the offense, the character, antecedents, associations, and community ties of the accused, as well as any other information which appears relevant. If it is satisfied that the accused will appear when ordered, will not leave Malta, will observe all conditions set by the court, will not interfere with any witnesses, and will not commit any other offense bail may be granted.<br />
<br />
===Right Against Ex Post Facto Prosecution===<br />
No person shall be held guilty of a crime which did not constitute a crime at the time of offense. There shall be no penalty or punishment for such an offense.<br />
<br />
===Right Against Double Jeopardy===<br />
No person who has been tried by any competent court for a criminal offense and either convicted or acquitted shall be tried again for that offence or for any other criminal offence of which they could have been convicted at the trial. The only exception to this is upon the order of a superior court made in the course of appeal or review proceedings relating to the conviction or acquittal. No person shall be tried for a criminal offense if they can show that they were pardoned for that offense.<br />
<br />
==Right to a Fair Trial==<br />
===Generally===<br />
Whenever a person is charged, they shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law. Except where agreed to by all parties, the court proceedings shall be held in public.<br />
<br />
===Right to a Trial by Jury===<br />
Criminal courts shall consist of one judge sitting with a jury for every offense. The jury shall decide on whether the accused is guilty or not guilty. The accused may, within 10 days of receiving notice of service, request a trial without a jury.<br />
<br />
===Right to a Speedy Trial===<br />
Whenever a person is charged with a criminal offence they shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by the law (Constitution, Article 39).<br />
<br />
===Right to an Impartial Judge===<br />
The Constitution of Malta, Article 39, provides that all persons have a right to a fair hearing by an independent and impartial court. The European Convention on Human Rights, Article 6, to which Malta is also a party, also enforces the right to a fair and impartial trial. The Maltese Code of Organization and Civil Procedure, Chapter 12, Section 734 allows parties to a case to challenge a judge and allows judges to recuse themselves in cases where there may be a conflict of interests.<br />
<br />
===Right to Language Interpretation===<br />
Suspects and accused shall be provided with a Letter of Rights in a language they understand. If you do not speak or understand the language spoken by the police or other authorities, you have the right to be assisted by an interpreter free of charge. The interpreter may also speak with the representative lawyer and must keep the information conveyed private. Individuals also have the right to receive a translation of the European Arrest Warrant in a language they understand. It is the duty of the executive police and court to ascertain whether the accused or suspect can understand the language of the courts and investigators and whether an interpreter is required. Suspects and accused have the right to receive a translation of all relevant passages of essential documents. In some cases, and oral translation may be provided. The Maltese language shall be the language of the courts, and all proceedings shall be conducted in Maltese, with provisions for the Use of English Language Act of 1965. Where the person charged does not understand the language of the proceedings or evidence given, they shall be interpreted either by the court or a sworn interpreter. Where all person charged are English-speaking, all proceedings shall be conducted in English. Where there are multiple people being charged, some of whom speak Maltese and some of whom speak English, the Maltese speaking accused must consent to proceedings being conducted in English. Where none of the parties are Maltese-speaking or English-speaking the court may elect to conduct proceedings in English. Where the court has ordered proceedings to be conducted in English, all subsequent stages of the proceedings shall also be conducted in English.<br />
<br />
===Right to Habeas Corpus===<br />
Per the Maltese Constitution, no person may be deprived of personal liberty or imprisoned of arbitrary reasons.<br />
<br />
Cases in which deprivation of liberty is authorized are as follows:<br />
<li>When executing a sentence for a criminal conviction <br />
<br />
<li>By court order to ensure the person fulfills a legally imposed obligation <br />
<br />
<li>for the purpose of being brought before a court <br />
<br />
<li>upon reasonable suspicion of the person having committed or being about to commit a criminal offense <br />
<br />
<li>For persons under 18, for the purposes of education and welfare <br />
<br />
<li>To prevent the spread of an infectious disease <br />
<br />
<li>In cases where a person is, or is reasonably suspected to be, of unsound mind, addicted to drugs or alcohol, or a vagrant, for the purpose of providing care, treatment, or protecting the community <br />
<br />
<li>For the purpose of preventing the unlawful entry of a person into Malta, or to affect the expulsion, extradition, or other lawful removal of a person from Malta <br />
<br />
==Capital Punishment==<br />
Capital punishment was formally abolished in 2000.<br />
<br />
==Right to Appeal==<br />
A person convicted on indictment may appeal to the Court of Criminal Appeal against their conviction in all cases and may appeal against the sentence passed on their conviction unless the sentence is one fixed by law. Article 500, Malta Criminal Code.<br />
<br />
==Rights of Counsel==<br />
===Right to Provide Representation===<br />
Under Article 6 of the European Convention on Human Rights, to which Malta is a party, everyone charged with a criminal offense has the right to be defended by legal assistance of their choosing. Additionally, they have the right to be provided free legal defense if they lack the means to pay for it themselves. Malta also ensures low-income individuals have access to legal aid.<br />
<br />
===Right of Access to the Client===<br />
Under Article 11(4) of the Maltese Constitution all persons arrested or detained have the right of access to a lawyer. The Maltese Criminal Code, Article 355AU provides that the accused will have access to a lawyer without und delay before any questioning by police or law enforcement, during any evidence-gathering acts, or immediately upon deprivation of liberty. Additionally, the accused have the right to meet in private with the lawyer either face-to-face or over the phone and the right to have their lawyer present when being questioned. Since Legal Notice 35 of 2021, attorneys must be allowed private consolation with their client for up to one hour preceding police questioning.<br />
<br />
===Right to Information===<br />
Under Articles 534A-AG, suspects must receive a letter of rights which includes the right to access essential documents necessary for preparing a defense. Under Article 6 of the ECHR, defendants must be informed promptly and in detail of the nature and cause of accusations and must be given access to evidence necessary to challenge the prosecution’s case.<br />
<br />
===Right to Confidential Communication with the Client===<br />
Under Article 350(1) of the Maltese Criminal Code, communication between attorneys and their clients is protected by legal professional privilege. Maltese courts have no authority to compel disclosure of privileged communications without the client’s explicit consent.<br />
<br />
==Means of Protecting or Enforcing Rights==<br />
===Exclusionary Rule===<br />
The Maltese Code of Organization and Civil Procedure requires that evidence be relevant and the best available (Articles 558-560), however there is no general prohibition on evidence obtained illegally. Courts may still admit illegally obtained evidence on a case-by-case basis if it is relevant and material.<br />
<br />
===Nullity of Procedure===<br />
Per the Maltese Criminal Code, judgements must contain the facts, finding of guilt or innocence, the law applied, and the punishment, if applicable. Failure to meet these requirements may invalidate the judgement. Article 382. Per the Code of Organization and Civil Procedure, judicial acts which are not in accordance with the form prescribed by law, or which lack the required formalities are null. Article 789.<br />
<br />
===Motions===<br />
Defense may move to have evidence deemed inadmissible or may raise issues regarding procedural errors which will be assessed on a case-by-case basis.<br />
<br />
===Contempt===<br />
Per the Maltese Code of Organization and Civil Procedure, Art. 997 contempt can result in up to 1 month imprisonment and/or a fine. The Maltese Criminal Code also includes provisions which prohibit and enforce punishments for insults and threats against judges, magistrates, and jurors.<br />
<br />
==Pretrial Procedures==<br />
===Police procedures===<br />
====Complaint/information====<br />
Upon receipt of any information or complaint requiring proceedings, the executive police shall inform the Court of Magistrates as soon as possible to receive necessary instructions for proceedings. In cases where the complaint provides sufficient evidence to support an arrest, the police must inform the court and create a report. In the following cases, police may institute proceedings without a complaint:<br />
<br />
<li>In cases of crimes for which the law does not expressly provide that a complaint by a private party is necessary <br />
<br />
<li>Any offence consisting in the carrying of prohibited weapons <br />
<br />
<li>Any offense against any law relating to fishing, vehicles, boats, art, or trade <br />
<br />
<li>Any offence committed against an individual who is incapable of instituting criminal proceedings due to physical or mental infirmity <br />
<br />
<li>Offenses affecting public order or the community in general <br />
<br />
<li>Cases of domestic violence <br />
<br />
Criminal proceedings shall not be instituted except upon complaint by private party in the following cases:<br />
<br />
<li>carnal knowledge accompanied with violence <br />
<br />
<li>abduction <br />
<br />
<li>violent indecent assault <br />
<br />
<li>theft of electricity <br />
<br />
===Arrest, Search and Seizure Laws===<br />
====Stops and Frisks====<br />
Police officers in any public place or place of public admittance may search any person or vehicle if there is reasonable suspicion that the search will discover prohibited items, or evidence of a crime. Police may subsequently seize anything discovered during the search which is prohibited or connected to a crime. Searches cannot be conducted by police officers of the opposite sex. Police officers not in uniform cannot conduct searches unless they present their police identification card.<br />
<br />
====Arrests====<br />
Where there are lawful grounds for arrest, the police may request an arrest warrant from a Magistrate. Any police officer may arrest, without a warrant, anyone who is in the act of committing or has just committed a crime, or whom they reasonably suspect has just committed or is about to commit a crime. An arrest is not valid if the person being arrested is not informed that they are under arrest. Police are prohibited from using any harshness during the arrest. Any person erroneously arrested or arrested without warrant shall be immediately released. Any person arrested who has not been brought before a court within 48 hours shall be released.<br />
<br />
====Pre-trial detention====<br />
If the grounds for custody have ceased to apply, if the person was arrested without warrant, or failed to be brought before a court within 48 hours, they shall be immediately released from custody. The police have a duty to inform anyone arrested or detained of their right to inform a friend or relative of their detainment. They shall be allowed to consult privately with an attorney as soon as practicable and upon request.<br />
<br />
====Searches====<br />
A police officer may immediately conduct a search of arrestees in cases where the officer has reasonable grounds to believe the arrested person may be a danger to himself or others; to search for anything the arrested person may use to escape from custody; or to search for evidence related to the offense. Police are authorized to search, without a warrant, any premises, house, building, or enclosure used, occupied, or controlled (even temporarily) by the person who is under arrest if they have reasonable grounds to suspect that there is evidence that relates to the crime. This search must be limited to the extent reasonably necessary to discover such evidence. Police are not authorized to search any premises, house, building, or enclosure without a warrant in cases where an arrest is not taking place.<br />
<br />
====Seizures====<br />
Police may, when lawfully on any premises, seize anything on the premises if they have reasonable suspicion that it was obtained as the result of, or in connection to a criminal offense, as necessary to prevent it from being concealed, lost, damaged, altered or destroyed. Police must issue a receipt of the item seized to the person on the premises or in control of them. Anything lawfully seized by police may be retained as long as necessary in the circumstances.<br />
<br />
====Enforcing the Rules (Exclusionary Rule, Nullity, and other procedures to protect against illegal police procedures)====<br />
Malta is a part of the European Convention on human rights which ensures access to a fair, impartial trial. In accordance with this directive, Maltese courts have increasingly shown the capacity and will to enforce penalties and exclude evidence which were collected through illegal or improper police procedures. Lawyers who witness illegal police investigative procedures must report this to the magistrate within 24 hours. The magistrate will then enquire, and act accordingly given the situation.<br />
<br />
===Lineups and other identification procedures===<br />
====Lineups====<br />
As a rule, it is not necessary that a witness identify a subject or item from a lineup for identification purposes, unless the court in that particular case deems such a course of action necessary in the given circumstances.<br />
<br />
===Interrogation===<br />
====Before formal charge in court====<br />
Before interrogation, individuals who have been arrested or detained have the right to speak with a lawyer for maximum one hour. A police officer in the grade of Superintendent or higher may authorize the delay of this right but not for a period longer than 36 hours. Police may immediately interrogate arrestees or detainees, but they retain the right to remain silent and the right to have legal representation. Police are obligated to assist you in contacting a lawyer but will not provide the specific name of a lawyer. In certain cases, arrestees/detainees may be entitled to free legal aid and police will help determine whether this is applicable. Article 6 of the European Convention, to which Malta is a party, grants all persons the right to assistance of a lawyer during questioning.<br />
<br />
<br />
<br />
<br />
<br />
====After defendant is formally charged====<br />
Any questioning after formal charges must be judicially authorized or conducted during court proceedings.<br />
<br />
====Enforcing the rules (procedures to protect against illegal interrogation)====<br />
There are multiple cases in which the Maltese Constitutional court has excluded evidence or imposed fines on the prosecution for interrogation violations. In 2016 a court ordered the Commissioner of Police and Attorney General to pay a fine for allowing a statement made without assistance of a lawyer to be used against a defendant. In 2017 a Maltese court prohibited a statement made without legal assistance from being admitted as evidence during trial. While there are not codified enforcement procedures in civil law, the courts have shown increased strictness in enforcing these procedures by citing Article 6 of the European Convention.<br />
<br />
<br />
<br />
<br />
==Court Procedures==<br />
===Pre-Trial===<br />
====Initial Court Appearance====<br />
The Maltese Court of Magistrates has jurisdiction over the initial arraignment. The court will read the specific charges and confirm whether the accused wants/has legal assistance. Under Maltese law and the ECHR Article 6 the accused has the right to be informed in detail and in writing of the nature of the offense, to adequate time and facilities to prepare their defense, to legal representation, and to free assistance of an interpreter, if needed.<br />
<br />
<br />
<br />
====Charging Instrument====<br />
Under Section 360(2) of the Criminal Code the charge sheet but accurately reflect the facts of the offense. If there are errors the court must dismiss the case.<br />
<br />
<br />
====Preliminary Hearing====<br />
Cases will be subject to magisterial inquiry as an investigative authority. At this inquiry the presiding magistrate will examine evidence, witness statements, and witnesses and the accused may be cross-examined and questioned by the court. The magistrate will then decide whether there is sufficient evidence to commit the accused to trial or if the evidence is insufficient and the case must be dismissed.<br />
<br />
====Pre-Trial Motions====<br />
No later than 15 working days from the date of service, the accused shall file all motions regarding the admissibility of evidence, indicating witnesses, and produce all documents and other exhibits they intend to use at trial. The accused shall be notified of the trial date at least 20 days prior to allow them to prepare a defense. The accused may request further extensions to this 20-day period. Pre-trial motions include:<br />
<br />
<li>Request for Bail, Art. 575 Criminal Code <br />
<br />
<li>Plea of Nullity, Art.382, Art, 793 COCP <br />
<br />
<li>Request for Disclosure of Evidence, grounded in fair trial rights in accordance with ECHR Art. 6 <br />
<br />
<li>Request to declare evidence inadmissible which will be assessed on a case-by-case basis <br />
<br />
<li>Request for expert appointment <br />
<br />
====Discovery====<br />
The record of the inquiry, all documents and exhibits filed in the registry of the court by either party to the case shall be accessible to both the prosecution and the defense. No witness, documents, or exhibits may be used in court unless filed with the registry.<br />
<br />
===Trial===<br />
====Nature of the Trial====<br />
There are three types of criminal trials in Malta.<br />
<br />
<li>Summary Proceedings (Magistrate’s Court): This will be used in cases of minor offenses.<br />
<br />
<li>Hybrid of Enhanced Summary Proceedings: Structure will mirror summary proceedings but with the involvement of the Attorney General. This is reserved for slightly more serious offenses.<br />
<br />
<li>Jury Trial: Applies to serious offenses beyond the jurisdiction of the Magistrate Court. This will consist of a judge and a jury of nine lay persons.<br />
<br />
====Defendant====<br />
The court shall ask the accused to verify their name, age, place of birth and abode, trade, profession, or calling, the same and surname of their father and whether their father is alive or dead. The court shall also ask the accused how they wish to reply to the charge. Before asking any of these questions, the court shall explain to the accused the nature of the charge and inform them that they are not obliged to answer any of the questions, nor incriminate themselves, and that they are entitled to legal assistance.<br />
<br />
====Lawyers====<br />
Lawyers for the defense may be present at all proceedings. Defendants may choose their legal counsel, and their attorneys must be given sufficient time and facilities for case preparation. During proceedings, lawyers must have full access to evidence and materials necessary for representation. Lawyers for both the defense and prosecution are authorized to examine or cross-examine witnesses, and to produce evidence, provided that this evidence has been deemed admissible by the court. For prosecution, the attorney general will represent the state in hybrid proceedings and jury trials.<br />
<br />
====Expert Witnesses====<br />
In all cases where special skill or knowledge is required, a reference to experts shall be ordered. The court shall give experts necessary time and documents to all them to make their report. Experts are authorized to receive documents and examine witnesses under oath. Upon completion of their work experts shall make a report of their findings either orally or in writing, according to the directions of the court. The parties, court, and in some cases jurors, may require experts to further elucidate their reports or clarify them.<br />
<br />
====Judges====<br />
A single magistrate will handle both inquiry preliminary proceedings and summary trials. As an investigating magistrate the judge will compile evidence, record witness statements, appoint experts, and determine whether there is sufficient evidence to commit the accused to a trial. In summary proceedings, magistrates hear evidence, question witnesses, apply the law, and deliver judgments for crimes carrying up to 6 years imprisonment. In jury trials there will be one presiding judge. The judge’s role includes ruling on preliminary pleas, guiding the jury, ensuring procedural fairness, and deciding on sentencing.<br />
<br />
====Victims====<br />
The Victims of Crime Act of 2015 allows victims access to free legal aid, to be kept informed about the progress of court proceedings, and to seek compensation from offenders. Victims have the right to receive a written acknowledgement of a complaint and to receive ongoing informational updates about the status of their case.<br />
<br />
====Sentencing====<br />
When the hearing is concluded, if conveniently practicable, the court shall deliver judgement on the sentence on the same day. Sentencing is largely based on judicial discretion but there are ongoing efforts to align Malta with broader EU sentencing guidelines and standards.<br />
<br />
===Appeals===<br />
====Right to Counsel====<br />
A person who wants to appeal their judgement from the Court of Magistrates with legal aid may do so. They must inform their assigned legal aid attorney on the same day that the decision is reached. The lawyer must then file the appeal within 12 working days. The convicted person may also ask the presiding judge to assign legal counsel or contact Legal Aid Malta.<br />
<br />
====Ineffective Assistance of Counsel====<br />
This is not recognized as grounds for appeal under Maltese law.<br />
<br />
====Other Grounds for Appeal====<br />
The Maltese Criminal Code, Chapter 9, the European Convention on Human Rights Articles 6 and 13, and Legal Aid Malata Criminal Appeals Process outline the following grounds for appeal:<br />
<br />
<li>Trial court wrongly interpreted or applied the law <br />
<br />
<li>Error in fact or evaluation of evidence <br />
<br />
<li>Procedural irregularity or breach of fair trial <br />
<br />
<li>Miscarriage of justice <br />
<br />
<li>Disproportionate or error in sentencing <br />
<br />
<li>Jury misconduct or irregularities <br />
<br />
<li>Judge error <br />
<br />
<li>Denial of fair trial due to no counsel at interrogation state <br />
<br />
<li>Systemic failure of legal aid <br />
<br />
====Collateral Remedies====<br />
All persons have the right to initiate a constitutional application before the Civil Court in situations where their fundamental Constitutional Rights have been breached or violated during criminal proceedings.<br />
<br />
==Rights in prison==<br />
===Right to Humane Conditions of Confinement===<br />
Malta is bound by all EU and European Convention rules regarding safe and human prison treatment. In general, conditions of confinement must respect the human dignity of inmates and promote rehabilitation.<br />
<br />
===Immigrant’s Rights in Detention===<br />
The European Court of Human Rights has confronted Malta on several occasions over the past decade for its detention of asylum seekers. According to the UNHCR immigrants have the right to remain in Malta, to receive procedural information, to legal assistance, to confidentiality, and to contact the UNHCR. Individuals detained under Article 10 of the Immigration Act (those who arrive without permission) may be removed from the country.<br />
<br />
===Right to Medical Care in Prison===<br />
Prisoners in Malta are entitled to the same level of free health services as the general public. Prisoners must be examined within 24 hours of admission. Prisons must have equipped infirmaries and prisoners must be transferred to the hospital if necessary. In 2025 a report by the Council of Europe noted that healthcare conditions in Maltese prisons are improving and include well-equipped facilities and improving staffing levels and prompt access to medical care. The Council of Europe outlines that prisons must have integrated and comprehensive medical care.<br />
<br />
===Right to Mental Health Care===<br />
Access to mental health care in prisons falls under the same guiding principles as access to general healthcare.<br />
<br />
===Restriction of Rights===<br />
While imprisoned, individuals cannot vote, cannot hold public office, and cannot enter into contracts which require their presence or signatures outside of prison. They maintain their right to due process, legal representation, and a trial with appeals as allowed in the code of criminal procedure and constitution.<br />
<br />
==Rights of Special Populations==<br />
===Women===<br />
Women are housed in a separate female division in Malta. They generally have fewer resources and smaller facilities due to smaller numbers of women being incarcerated compared to men. Searches and sensitive procedures on women prisoners can be conducted by women staff only. Mothers can apply for special visiting arrangements with children but long-term family accommodation is not provided.<br />
<br />
===GLBT Prisoners===<br />
Prisoners are assigned to prison divisions based on legal gender as stated on official documents, not based on sex characteristics. Those in transition must make a sworn declaration of their gender. Inmates have the right to pursue legal gender recognition and access to corresponding medical care while in prison. As a testament to Malta’s commitment to protecting its LGBT+ inmates, in 2018 seven transgender inmates won a constitutional case after being forced to live in the male prison section despite identifying as women. They were awarded damages and reassigned to the correct prison section.<br />
<br />
===Mentally Ill Prisoners===<br />
Mentally ill prisoners may be transferred to mental health facilities as the advice of prison medical officials.<br />
<br />
===Juveniles===<br />
Per Maltese Prison regulations, juveniles under 21 years of age must be housed separately from adult prisoners. Male and female juveniles must also be housed separately. Juveniles have the right to rest, education, leisure, physical development, and family engagement, with parameters.<br />
<br />
==Resources==<br />
"Understanding the Maltese Legal System." CA Advocates, 15 Aug. 2025, ca.mt/understanding-the-maltese-legal-system/.<br />
<br />
Tabone, Marlon. "The main components of the Maltese legal system and the primary provisions of Maltese." Medium, 15 Aug. 2025, medium.com/@marlontabone/the-main-components-of-the-maltese-legal-system-and-the-primary-provisions-of-maltese-6380b10fb33.<br />
<br />
"Law System in Malta." Avukati, 15 Aug. 2025, www.avukati.org/public/law-system-in-malta/.<br />
<br />
"Constitution of Malta." Riforma Kostituzzjonali, 15 Aug. 2025, riformakostituzzjonali.gov.mt/documents/constitution-of-malta/?lang=en.<br />
<br />
"Criminal Code, 2015." IHL Databases, 15 Aug. 2025, ihl-databases.icrc.org/en/national-practice/criminal-code-2015.<br />
<br />
"Legal Aid Referral System." Justice Ministry, 15 Aug. 2025, justiceministry.gov.mt/en/legalaidmalta/Pages/Legal%20Aid%20Referral%20System.aspx.<br />
<br />
"Legal Aid Malta." Legal Aid Malta, 15 Aug. 2025, legalaidmalta.gov.mt/.<br />
<br />
"Advocates in Malta." Lawyers in Malta, 15 Aug. 2025, www.lawyersinmalta.com/advocates-in-malta/.<br />
<br />
"Use of English Act." Uniset, 15 Aug. 2025, www.uniset.ca/microstates2/malta-use-of-english-act.pdf.<br />
<br />
"Healthcare Entitlement." Gov.mt, 15 Aug. 2025, www.gov.mt/en/Life%20Events/Pages/Healthy%20Living/Healthcare-entitlement.aspx.<br />
<br />
"Legal Rights and Protections in Malta." USCIS Guide, 15 Aug. 2025, www.uscisguide.com/international/legal-rights-and-protections-in-malta/.<br />
<br />
"Malta: The abolition of the death penalty." Amnesty International, 15 Aug. 2025, www.amnesty.org/en/wp-content/uploads/2021/06/act530032000en.pdf.<br />
<br />
"Strict interpretation of the law when challenging a Judge." Mifsud Advocates, 15 Aug. 2025, www.mifsudadvocates.com.mt/strict-interpretation-of-the-law-when-challenging-a-judge/.<br />
<br />
"Statements by suspects not assisted by a lawyer cannot be used as evidence - court." Times of Malta, 15 Aug. 2025, timesofmalta.com/article/statements-by-suspects-not-assisted-by-a-lawyer-cannot-be-used-as.651801.<br />
<br />
"Court awards €4,500 to man who was refused legal aid during interrogation." Malta Today, 15 Aug. 2025, www.maltatoday.com.mt/news/court_and_police/61207/court_awards_4500_to_man_who_was_refused_legal_aid_during_interrogation.<br />
<br />
"New rules on police interrogations come into force." Times of Malta, 15 Aug. 2025, timesofmalta.com/article/new-rules-on-police-interrogations-come-into-force.645164.<br />
<br />
"New law gives crime victims legal aid right." Times of Malta, 15 Aug. 2025, www.timesofmalta.com/article/new-law-gives-crime-victims-legal-aid-right.564676.<br />
<br />
"The Right to Silence in the Criminal Law of Malta." University of Malta, 15 Aug. 2025, www.um.edu.mt/library/oar/handle/123456789/29413.<br />
<br />
"Criminal Legal Aid Cases." Legal Aid Malta, 15 Aug. 2025, legalaidmalta.gov.mt/Criminal-Legal-Aid-Cases.<br />
<br />
"Defining Legal Aid." Legal Aid Malta, 15 Aug. 2025, legalaidmalta.gov.mt/Defining-Legal-Aid.</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Criminal_Justice_Systems_Around_the_World&diff=381675Criminal Justice Systems Around the World2025-08-18T09:10:45Z<p>IBJadmin: </p>
<hr />
<div>Criminal justice systems can be loosely classified as either common, civil, Islamic or socialist law in nature. However, today many jurisdictions have adopted hybrid models that combine elements of various legal systems. Many of these systems share a common set of [[Core Values | core values]]. In addition, most criminal justice systems have adopted a [[Legality Principle | legality principle]]. Almost every criminal justice system is made of of similar [[Actors in the Criminal Justice System | actors]].<br />
<br />
==Country Pages==<br />
<div style="float: left; width: 33%"><br />
<br />
*[[Afghanistan]]<br />
*[[Albania]]<br />
*[[Algeria]]<br />
*[[Andorra]]<br />
*[[Angola]]<br />
*[[Antigua and Barbuda]]<br />
*[[Argentina]]<br />
*Armenia<br />
*[[Australia]]<br />
*[[Austria]]<br />
*[[Azerbaijan]]<br />
*[[The Bahamas]]<br />
*Bahrain<br />
*[[Bangladesh]]<br />
*[[Barbados]]<br />
*[[Belarus]]<br />
*[[Belgium]]<br />
*[[Belize]]<br />
*[[Benin]]<br />
*[[Bhutan]]<br />
*[[Bolivia]]<br />
*[[Bosnia and Herzegovina]]<br />
*[[Botswana]]<br />
*[[Brazil]]<br />
*[[Brunei]]<br />
*[[Bulgaria]]<br />
*[[Burkina Faso]]<br />
*[[Burundi]] <br />
*[[Cambodia]]<br />
*[[Cameroon]]<br />
*[[Canada]]<br />
*[[Cape Verde]]<br />
*[[République Centrafricaine|Central African Republic]]<br />
*[[Chad]]<br />
*[[Chile]]<br />
*[[China]]<br />
**[[Hong Kong]]<br />
**[[Taiwan]]<br />
*[[Colombia]]<br />
*[[Comoros]]<br />
*[[Congo, Democratic Republic of the]]<br />
*[[ République du Congo (Congo-Brazzaville)|Congo, Republic of the]]<br />
*[[Costa Rica]]<br />
*[[Croatia]]<br />
*[[Cuba]]<br />
*[[Cyprus]]<br />
*[[Czech Republic]]<br />
*[[Denmark]]<br />
*Djibouti<br />
*Dominica<br />
*[[Dominican Republic]]<br />
*East Timor<br />
*[[Ecuador]]<br />
*[[Egypt]]<br />
*[[El Salvador]]<br />
*[[Equatorial Guinea]]<br />
*[[Eritrea]]<br />
*Estonia<br />
*[[Ethiopia]]<br />
*Fiji<br />
*[[Finland]]<br />
*[[France]]<br />
**French Guiana<br />
**[[French Polynesia]]<br />
*[[Gabon]]<br />
*[[Gambia, The]]<br />
*[[Georgia]]<br />
<br />
</div><div style="float: left; width:33%"><br />
<br />
*[[Germany]]<br />
*[[Ghana]]<br />
*[[Greece]]<br />
*Grenada<br />
*[[Guatemala]]<br />
*[[Guinea]]<br />
*[[Guinea-Bissau]]<br />
*[[Guyana]]<br />
*Haiti<br />
*[[Honduras]]<br />
*[[Hungary]]<br />
*Iceland<br />
*[[India]]<br />
*[[Indonesia]]<br />
*[[Iran]]<br />
*[[Iraq]]<br />
*[[Ireland]]<br />
*[[Island of Guam]]<br />
*[[Israel]]<br />
*[[Italy]]<br />
*[[Côte d’Ivoire|Ivory Coast]]<br />
*[[Jamaica]]<br />
*[[Japan]]<br />
*Jordan<br />
*[[Kazakhstan]]<br />
*[[Kenya]]<br />
*Kiribati<br />
*[[Korea, North]]<br />
*[[South Korea|Korea, South]]<br />
*Kosovo<br />
*Kuwait<br />
*[[Kyrgyzstan]]<br />
*[[Laos]]<br />
*Latvia<br />
*[[Lebanon]]<br />
*[[Lesotho]]<br />
*[[Liberia]]<br />
*Libya<br />
*[[Liechtenstein]]<br />
*[[Lithuania]]<br />
*[[Luxembourg]]<br />
*Macedonia<br />
*[[Madagascar]]<br />
*[[Malawi]]<br />
*[[Malaysia]]<br />
*[[Maldives]]<br />
*[[Mali]]<br />
*[[Malta]]<br />
*Marshall Islands<br />
*[[Mauritania]]<br />
*[[Mauritius]]<br />
*[[Mexico]]<br />
*Micronesia<br />
*[[Moldova]]<br />
*[[Monaco]]<br />
*[[Mongolia]]<br />
*[[Montenegro]] <br />
*[[Morocco]]<br />
*[[Mozambique]]<br />
*[[Myanmar]]<br />
*[[Namibia]]<br />
*Nauru<br />
*[[Nepal]]<br />
*[[Netherlands]]<br />
*[[New Zealand]]<br />
*[[Nicaragua]]<br />
*[[Niger]]<br />
*[[Nigeria]]<br />
*Norway<br />
*[[Oman]]<br />
<br />
</div><div style="float: left; width: 33%"><br />
<br />
*[[Pakistan]]<br />
*Palau<br />
*Palestine<br />
*[[Panama]]<br />
*[[Papua New Guinea]]<br />
*[[Paraguay]]<br />
*[[Peru]]<br />
*[[Philippines]]<br />
*[[Poland]]<br />
*[[Portugal]]<br />
*[[Qatar]]<br />
*[[Romania]]<br />
*[[Russia]]<br />
*[[Rwanda]]<br />
*Saint Kitts and Nevis<br />
*[[Saint Lucia]]<br />
*Saint Vincent and the Grenadines<br />
*Samoa<br />
*San Marino<br />
*[[São Tomé and Príncipe]]<br />
*[[Saudi Arabia]]<br />
*[[Senegal]]<br />
*[[Serbia]]<br />
*[[Seychelles]]<br />
*[[Sierra Leone]]<br />
*[[Singapore]]<br />
*[[Slovakia]]<br />
*Slovenia<br />
*[[Solomon Islands]]<br />
*[[Somalia]]<br />
*[[South Africa]]<br />
*[[South Sudan]]<br />
*[[Spain]]<br />
*[[Sri Lanka]]<br />
*[[Sudan]]<br />
*Suriname<br />
*[[Swaziland]]<br />
*[[Sweden]]<br />
*[[Switzerland]]<br />
*[[Syria]]<br />
*[[Tajikistan]]<br />
*[[Tanzania]] <br />
**[[Zanzibar]]<br />
*[[Thailand]]<br />
*[[Togo]]<br />
*[[Tonga]]<br />
*[[Trinidad and Tobago]]<br />
*[[Tunisia]]<br />
*[[Turkey]]<br />
*[[Turkmenistan]]<br />
*[[Tuvalu]] <br />
*[[Uganda]] <br />
*[[Ukraine]]<br />
*[[United Arab Emirates]]<br />
*United Kingdom<br />
**[[England and Wales]]<br />
**[[Scotland]]<br />
*[[United States]]<br />
**[[Puerto Rico]]<br />
*[[Uruguay]] <br />
*[[Uzbekistan]]<br />
*[[Vanuatu]]<br />
*[[Venezuela]]<br />
*[[Vietnam]] <br />
*[[Yemen]]<br />
*[[Zambia]]<br />
*[[Zimbabwe]] <br />
<br />
<br />
<br />
</div><br />
<br />
{{Languages|Criminal Justice Systems Around the World}}<br />
<br />
==We need your help==<br />
Can you assist the creation of a country-page? Email elearning@ibj.org.<br />
<br />
----<br />
<br />
See [[Legal Aid Systems and Supporting NGOs around the world]]</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Barbados&diff=381674Barbados2025-07-30T09:45:39Z<p>IBJadmin: </p>
<hr />
<div>{{Languages|English}}<br />
<br />
<div class="box" style="padding: 40px; font-size: 1.5em; font-family: Arial, sans-serif; line-height: 1.5; border: 3px solid yellow; background-color: #FFFF00; text-align: center; margin: 30px;"><br />
⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>.<br />
</div><br />
<br />
<br />
{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;"> Legal resources for Barbados </h2><br />
* Constitution of Barbados <ref>https://www.oas.org/dil/the_constitution_of_barbados.pdf<br />
</ref><br />
<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-learning resources </h2> <br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background== <br />
Barbados is a tropical Caribbean island that was settled by the British in 1627 who established sugar plantations worked by enslaved Africans. By 1834, Barbados had become less dominant in sugar production and slavery was abolished. The economy remained fueled by sugar, rum, and molasses with an abundance of petroleum, fish, and natural gas. Barbados gained independence from the British in 1966, leading to a surge in tourism and manufacturing. In 2021, Amendment No.2 Bill of the Constitution established Barbados as a parliamentary republic.<br><br />
<br />
Today, Barbados is most densely populated in the eastern Caribbean where ⅓ of the population (~68,046 people), at a total of 204,139 people, lives in urban areas. Nearly 92% of the population is of African descent with small portions of mixed, White, and East Indian groups. The official language of Barbados is English with Bajan—an English-based creole language—spoken informally. The dominant religion of the state is Protestantism (66.4%) with Roman Catholicism (3.8%) and other Christian religions (5.4%) following behind.<br><br />
<br />
==Legal system== <br />
Barbados operates under a common law legal system with no judicial review of legislative acts. The judicial hierarchy consists of the Magistrates' Courts, the High Court, and the Caribbean Court of Justice, with the Judicial Committee of the Privy Council serving as the final stage for appeals.<br><br />
<br />
==Legal aid== <br />
===State-sponsored legal aid=== <br />
Barbados provides state-sponsored legal aid through Chapter 112A Community Legal Services Act (CLSC). Legal aid is issued to applicants who qualify based on financial means, determined by income, property, number of dependents, and other relevant financial burdens. Aid covers criminal matters including capital offenses, manslaughter, infanticide, concealment of birth, rape, offences where minors are charged, and many other indictable offenses. Aid covers civil matters including all family law matters except divorce, cases involving minors, tenants/tenantries, enforcement of protective provisions, and applications for a writ of habeas corpus. Recipients may be required to pay a contribution toward the cost of the services.<br><br />
<br />
===NGOs providing pro bono legal aid=== <br />
Existing NGOs and organizations that provide pro bono legal aid include the Barbados Bar Association which manages a pro bono panel; the SAVE Foundation which provides legal support for victims of domestic violence through partnerships; the Men's Educational Support Association (MESA), which provides legal referrals for fathers and families in domestic crises; Barbados Gays and Lesbians Against Discrimination (B-GLAD) which provides advocacy and legal support services to protect LGBTQ+ rights; and The National Organization of Women (NOW) which has a network of legal aid to empower women and free them from violence. Additionally, AccessLegal is a Caribbean network and regional initiative to connect clients with lawyer volunteers.<br><br />
<br />
===Number of lawyers=== <br />
As of October 2024, the Attorney General of Barbados noted that there are just over 1,000 practicing attorneys on the island (referring to attorneys-at-law, barristers, solicitors, and excluding non-active lawyers).<br><br />
<br />
==Sources of defendant's rights== <br />
===National sources of defendant's rights=== <br />
National sources of defendant's rights can be found in the Constitution of Barbados which was adopted in 1966, scrapping the earlier government (Order in Council) and was later revised in 2021. The Evidence Act, known as Chapter 121, and the Criminal Procedure Code, known as Chapter 127, both outline procedural safeguards for defendants like rules of evidence, burdens of proof, and judicial discretion.<br><br />
<br />
===International sources of defendant's rights===<br />
Defendant's rights are protected by international human rights treaties. Barbados is subject to the International Covenant on Civil and Political Rights (ICCPR), which protects the right to a fair trial, presumption of innocence, legal assistance, and equality before courts. The Universal Declaration of Human Rights (UDHR), although not binding, influences in some capacity domestic law by protecting the right to fair and public hearing, presumption of innocence, and right to defense. Because Barbados follows commonwealth traditions, it follows UK precedents such as having a Judicial Committee of the Privy Council (JCPC) that is the final stage for appeals and the Caribbean Court of Justice (CCJ) which handles regional matters.<br><br><br />
<br />
==Rights of the Accused==<br />
<br />
===Right Against Unlawful Arrests, Searches and Seizures=== <br />
According to the Barbados Constitution, no person or their property shall be searched or entered by others on their premise without consent under section 17. However, it is permissible to do so when in the interests of defense, public safety, order, morality, health, town/country planning, development/utilization of minerals, and development/utilization of any property to "promote public benefit." It is also permissible to search someone or their property if for the purpose of protecting other people's rights, to inspect a crime, to enforce an order from the court, or prevent/detect criminal offenses.<br><br />
<br />
===Right Against Unlawful Detention=== <br />
Section 13(4) of the Barbados Constitution stipulates that any person unlawfully arrested or detained shall be entitled to compensation.<br><br />
<br />
===Right Not to be Tortured or Ill-Treated=== <br />
According to the Barbados Constitution, no person shall be subjected to torture, inhuman/degrading punishment, or other treatment under section 15.<br><br />
<br />
===Right to Medical Care=== <br />
The Barbados Constitution does not explicitly contain a right to medical care.<br><br />
<br />
===Right to be Informed of Charges=== <br />
Pursuant to section 13(2) of the Barbados Constitution, any person who is arrested or detained must be informed as soon as possible, in a language they understand, of their charges.<br><br />
<br />
===Right to Presumption of Innocence=== <br />
The Constitution of Barbados presumes defendants to be innocent until they are proved or have pleaded guilty.<br><br />
<br />
===Right Against Self-Incrimination=== <br />
After being informed of one's charges, the Barbados Constitution section 13(2) allows the accused to immediately, at their own expense, retain and instruct a legal advisor of their own choice.<br><br />
<br />
===Right to Counsel and Effective Assistance=== <br />
The lawyer that is retained and instructed by the accused must be a person entitled to practice in Barbados as an attorney-at-law.<br><br />
<br />
===Right to Present a Defense=== <br />
According to section 18 of the Barbados Constitution, all defendants charged with a criminal offense are permitted to defend themselves before the court in person or by legal representation, and provided with adequate time and facilities to prepare that defense.<br><br />
<br />
===Right to Due Process=== <br />
Section 18(2) of the Barbados Constitution outlines procedural fairness in jury setting and sets up due process rights for defendants.<br><br />
<br />
===Right to Equal Protection of the Laws=== <br />
Section 23 of the Barbados Constitution ensures that no law is discriminatory in itself or in its effect, and further, that no person is treated in a discriminatory manner.<br><br />
<br />
===Right to Bail=== <br />
The Barbados Constitution guarantees entitlement to release unless justified otherwise, setting a foundation for bail which is elaborated on in more detail in the criminal code.<br><br />
<br />
===Right Against Ex Post Facto Prosecution=== <br />
In section 18 of the Barbados Constitution, it's stated that no person should be held guilty for any act that wasn't an offense at the time it was committed, and further, no penalty should be imposed that is more severe than the penalty applicable at the time it was committed.<br><br />
<br />
===Right Against Double Jeopardy=== <br />
In the same section, the Barbados Constitution protects people from being tried for the same crime twice.<br><br />
<br />
===Right to a Fair Trial=== <br />
Section 18 of the Barbados Constitution provides defendants with the right to a fair trial.<br><br />
<br />
===Right to a Trial by Jury=== <br />
The Criminal Procedure Code of Barbados states that anyone who pleads not guilty and has therefore put themselves up for trial is entitled to a jury.<br><br />
<br />
===Right to a Speedy Trial=== <br />
Section 18 of the Barbados Constitution provides defendants with the right to a trial within reasonable time.<br><br />
<br />
===Right to an Impartial Judge=== <br />
Section 18 of the Barbados Constitution provides defendants with the right to an impartial and independent court established by law.<br><br />
<br />
===Right to Language Interpretation=== <br />
The Barbados Constitution ensures that when informing someone of their charges they have the right to language interpretation. This notice will also be provided in a written statement no more than five days after being detained in their own language. At trial, the defendant has the right to a language interpreter at no cost.<br><br />
<br />
===Right to Habeas Corpus=== <br />
Section 13 of the Barbados Constitution states that no person shall be deprived of their personal liberty unless authorized by law.<br><br />
<br />
===Capital Punishment=== <br />
Section 12 of the Barbados Constitution states that no person shall be deprived of life intentionally except in the case of the death penalty or other circumstances reasonably justifiable and permitted by law.<br><br />
<br />
===Right to Appeal=== <br />
The Barbados Constitution provides the right to appeal.<br><br><br />
<br />
==Rights of Counsel==<br />
<br />
===Right to Provide Representation=== <br />
Section 18 of the Barbados Constitution states that every person charged with a criminal offense shall be permitted to defend themself in court by a legal representative.<br><br />
<br />
===Right of Access to the Client=== <br />
The Barbados Constitution provides the right to legal representation of one's own choice and at one's own expense.<br><br />
<br />
===Right to Information=== <br />
The Barbados Constitution stipulates that the arrested/detained ought to be provided as soon as reasonably practicable information on their arrest and to be able to discuss it with counsel.<br><br />
<br />
===Right to Confidential Communication with the Client=== <br />
Any person arrested or detained is entitled to private communication with their lawyer.<br><br><br />
<br />
==Means of Protecting or Enforcing Rights==<br />
<br />
===Exclusionary Rule=== <br />
Chapter 121 of Evidence outlines exclusionary rules, including excluding hearsay evidence, any evidence that would result in unfairness or prejudice at trial, and confessions.<br><br />
<br />
===Nullity of Procedure=== <br />
The Criminal Procedure Code of Barbados ensures that if an indictment is improperly filed that it is quashed, which is a form of declaring it null and void. Procedural irregularities in indictment, committal, or evidence submission can lead to a quashing of charges.<br><br />
<br />
===Motions=== <br />
Applications for adjournments, variation of bail, or objections to proceedings—these procedural acts effectively function as motions. For example, the Magistrate's Courts Act allows parties to request adjournments of trials under section 32, and to raise objections to information, complaint, conviction or order under section 255, which functionally resemble motions to dismiss or suppress.<br><br />
<br />
===Contempt=== <br />
Section 259 of the Magistrate's Courts Act penalizes a person who, having been summoned to give evidence, neglects or refuses to appear, with potential punishment for contempt.<br><br />
<br />
===Civil Actions=== <br />
According to section 20 of the Barbados Constitution, every person is granted freedom of expression, including holding opinions and communicating them without interference. Section 21 grants the right to assembly, while there are some restrictions placed on this freedom.<br><br><br />
<br />
==Pre-trial Procedures==<br />
<br />
===Police procedures=== <br />
Chapter 167, the Police Act, governs police procedures in Barbados.<br><br />
<br />
====Complaint/information==== <br />
In section 2 of the Criminal Procedure Code, Barbados defines "information" as part of what constitutes an indictment. Section 4 governs how bills of indictment charging any person with an indictable offence may be preferred by any person before the High Court.<br><br />
<br />
====Arrest, Search and Seizure Laws==== <br />
Police are authorized to stop and question individuals in public places between 8:00PM and 5AM under suspicion pursuant to section 20 of the Police Act. Police are authorized to arrest—without a warrant—persons found loitering in public at night or carrying tools of housebreaking without a lawful excuse, any person committing a breach of peace, assaulting a police officer, or is suspected upon reasonable grounds of having committed an arrestable offense. Officers may also arrest any person committing an offense within view whose name and residence are unknown and cannot be ascertained.<br><br />
<br />
====Pre-trial Detention==== <br />
Section 24 in the Code of Criminal Procedures states that where any application is made to a judge for the release of a prisoner on bail, such application may be accepted or denied. Pre-trial detention is implied through procedures involving commitment and arraignment.<br><br />
<br />
====Searches==== <br />
Section 21 of the Police Act allows taking measurements, photographs, and fingerprints of persons in custody, however, this requires a court order if the individual refuses. Section 39 of the Police Act grants police broad powers to search vessels in port if they have reasonable grounds to suspect there is on board any property stolen or unlawfully obtained on the premises. Section 58 allows the search and seizure of property and unclaimed articles believed to be connected to an offense.<br><br />
<br />
====Lineups and Other Identification Procedures====<br />
Lineups are not specifically addressed in any Barbados statutes. Section 21 of the Police Act allows the taking of photographs, fingerprints, and measurements of persons in custody. If the person refuses, a magistrate may order compliance.<br><br />
<br />
====Interrogation==== <br />
There is no statutory requirement for cautioning suspects, presence of counsel, or recording of statements before or after formal charges. The Evidence Act describes what kind of evidence ought to be excluded to ensure a fair trial and the Police Act includes a disciplinary code that has consequences for abuse of authority, improper treatment of suspects, and violent or coercive behavior.<br><br><br />
<br />
==Court Procedures==<br />
<br />
===Pre-Trial=== <br />
According to section 24, where a person has been committed for sentence and an indictment against them has been preferred they must be brought before the high court, and if they fail to appear, a warrant may be issued for their arrest.<br><br />
<br />
====Charging Instrument==== <br />
Trial proceedings commence by information, which can lead to a summons or warrant. According to Section 12 of the Magistrate's Courts Act, an issue of summons directs a person requiring them to appear before the magistrate of that district to answer to the information, or suspicion of committing an offense.<br><br />
<br />
====Preliminary Hearing==== <br />
In Barbados, preliminary hearings are called committal proceedings and generally an examining magistrate will sit in open court, evidence given before the magistrate shall be given in presence of the accused, and the defense can ask the witness questions. However, evidence can be given in the absence of the defendant if their behavior is disorderly or they can't be present for health reasons. After the preliminary hearing, if the magistrate believes there is enough evidence for a jury trial, they must commit the defendant to the next High Court session, otherwise they are released.<br><br />
<br />
====Pre-trial Motions==== <br />
Barbados statutes don't explicitly mention "motions" but pre-trial decisions can include jurisdictional issues and amendments. Section 10 of the Criminal Procedure Act addresses procedural objections that may arise before or after trial. It allows a trial to proceed despite technical defects in the indictment unless a formal motion to quash the indictment is made at trial.<br><br />
<br />
====Discovery==== <br />
Barbados does not have formal "discovery" procedure, but it allows for access to depositions and written statements in preliminary/committal hearings. Section 132 of the Magistrate's Courts Act allows the admissibility of written statements in preliminary inquiries to the like extent as oral evidence. Sections 42 and 97 permit parties to copies of proceedings. Section 25 of the Criminal Procedure Act allows depositions of ill, deceased, or absent witnesses to be read at trial.<br><br />
<br />
===Trial=== <br />
Section 31 of the Magistrate's Courts Act sets out the procedure of trial and how a magistrate tries a case. When the accused appears in court, the magistrate must state the substance of the information (the charge) and ask whether the accused pleads guilty or not guilty. The magistrate will then hear the evidence from both sides (prosecution and defense), and based on that, either convict the accused or dismiss the information. If the accused pleads guilty, the magistrate may convict without hearing any evidence.<br><br />
<br />
====Judges==== <br />
In Barbados, the roles and powers of judges differ depending on whether they sit in the Magistrates' Courts or the High Court. Magistrates are judicial officers appointed under the Magistrate's Courts Act who possess the authority to preside over summary trials and committal proceedings for indictable offences. High Court judges preside over trials on indictment, oversee jury trials, rule on evidentiary matters, instruct juries, and impose sentences within the scope of their statutory authority.<br><br />
<br />
===Sentencing=== <br />
Sentencing provisions are governed by the Criminal Procedure Act of Barbados in section 11. This section outlines that only offenses specifically made punishable by death under statute can result in capital punishment. All other sentences are imposed either as specified by the offense-specific statute or, where silent, up to two years' imprisonment or a fine, as determined by the High Court. The court may also structure sentences consecutively when the offender is already serving time.<br><br />
<br />
===Appeals=== <br />
The Magistrate's Courts Act extensively covers appeals from summary trials. Section 240 sets the procedure for filing an appeal, including deadlines (within 7 days of conviction or sentence). Sections 242-243 lay out admissible grounds for appeal, such as lack of jurisdiction, legal error, and admission of inadmissible evidence. Section 260 empowers the Court of Appeal to affirm, amend, or reverse decisions, substitute sentences or remit the case to the magistrate.<br><br />
<br />
====Ineffective Assistance of Counsel==== <br />
While Barbados law does not have a codified standard regarding ineffective assistance of counsel, section 243 of the Magistrate's Courts Act allows appeals on grounds such as significant legal errors or omissions affecting the case's merits. This framework could encompass claims of ineffective assistance in practice where counsel's failure undermines the fairness of the trial.<br><br />
<br />
====Collateral Remedies==== <br />
Collateral remedies such as habeas corpus are protected under section 13 of the Barbados Constitution, which provides that no person shall be deprived of liberty except by due process of law. While the statutes do not explicitly detail habeas corpus procedures, this constitution provision implies its availability as a fundamental safeguard.<br><br><br />
<br />
==Rights in Prison==<br />
<br />
===Right to Humane Conditions of Confinement=== <br />
Under Section 36 of the Prisons Act, the Minister is responsible for ensuring "sufficient accommodation" in all prisons. Cells must be certified by both the Officer-in-Charge and medical officer to ensure they meet adequate standards for health, lighting, ventilation, and communication with officers.<br><br />
<br />
===Right to Medical Care in Prison=== <br />
Under section 10 of the Prisons Act, each prison must have a designated medical officer. Section 16 requires the medical officer to inspect prisoners daily, maintain health records, and inspect cooking/sanitation facilities monthly. Section 45 allows the Officer-in-Charge, upon advice from the medical officer, to order the transfer of ill prisoners to hospitals.<br><br />
<br />
===Right to Mental Health Care=== <br />
Mental health care is addressed under section 57 which allows a magistrate to order a mental examination if needed. The magistrate may require the accused to see one or two practitioners and to comply with institutional or practitioner directives. The duties of the medical officer under section 16 are broad and include oversight of both physical and mental health.<br><br />
<br />
===Rights of Special Populations=== <br />
====Women==== <br />
Section 33 of the Prisons Act mandates that in every prison where there are women prisoners, there must be a woman prison officer responsible for their discipline and care. Section 37 requires the strict separation of male and female prisoners into different buildings or parts of buildings. Section 14 guarantees religious freedom by allowing women to receive chaplains of their own denominations.<br><br />
<br />
====LGBTQ+ Prisoners==== <br />
There are no specific provisions protecting the rights of LGBTQ+ people in prison in either the Constitution or Criminal Code.<br><br />
<br />
====Mentally Ill Prisoners==== <br />
According to section 9, there is a special verdict where the defendant can be found not guilty of the act charged against them by reason of insanity. However, there are not comprehensive protections or procedures for mentally ill prisoners.<br><br />
<br />
====Juveniles==== <br />
Section 48 of the Prisoners Act allows young offenders under age 21 who receive a sentence of up to 3 months or are jailed for minor non-payment to opt for supervised public work instead of imprisonment—with their consent and the Superintendent's approval. The Juvenile Offenders Act defines a juvenile as under 16 years old, mandates that juveniles not be tried as adults, that juveniles should not be imprisoned with adults unless no suitable accommodation exists, and that special courts handle juvenile cases.<br><br><br />
<br />
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88. Chapter 116A Magistrate's Courts | The Laws of Barbados §33(1-4), p.37-38. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf<br />
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91. Chapter 116A Magistrate's Courts | The Laws of Barbados §167-168, p.108. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf<br />
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92. Chapter 116A Magistrate's Courts | The Laws of Barbados §168(1), p.108. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf<br />
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93. Chapter 116A Magistrate's Courts | The Laws of Barbados §3(1-3), p.23. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf<br />
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94. Chapter 116A Magistrate's Courts | The Laws of Barbados §36, p.36-37. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf<br />
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95. Chapter 127 Criminal Procedure | The Laws of Barbados §3, p.4. https://www.legal-tools.org/doc/5a90c2/pdf/<br />
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97. Chapter 116A Magistrate's Courts | The Laws of Barbados §168(1), p.12-13. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf<br />
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100. Chapter 127 Criminal Procedure | The Laws of Barbados §11(2-4), p.8. https://www.legal-tools.org/doc/5a90c2/pdf/<br />
<br />
101. Chapter 127 Criminal Procedure | The Laws of Barbados §11(4), p.8. https://www.legal-tools.org/doc/5a90c2/pdf/<br />
<br />
102. Chapter 116A Magistrate's Courts | The Laws of Barbados §240(1-2), p.135. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf<br />
<br />
103. Chapter 116A Magistrate's Courts | The Laws of Barbados §242-243, p.136-137. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf<br />
<br />
104. Chapter 116A Magistrate's Courts | The Laws of Barbados §260(2)(a), p.143-144. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf<br />
<br />
105. Chapter 116A Magistrate's Courts | The Laws of Barbados §243(f-h), p.136-137. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf<br />
<br />
106. Chapter 116A Magistrate's Courts | The Laws of Barbados §243(a-i), p.136-137. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf<br />
<br />
107. The Constitution of Barbados | The Laws of Barbados §13(1), p.19. https://www.oas.org/dil/the_constitution_of_barbados.pdf<br />
<br />
108. Chapter 116A Magistrate's Courts | The Laws of Barbados §260(2)(a-d), p.143-144. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf<br />
<br />
109. Chapter 168 Prisons | The Laws of Barbados §36(1), p.21. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf<br />
<br />
110. Chapter 168 Prisons | The Laws of Barbados §36(2), p.21. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf<br />
<br />
111. Chapter 168 Prisons | The Laws of Barbados §43, p.24. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf<br />
<br />
112. Chapter 168 Prisons | The Laws of Barbados §10, p.11. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf<br />
<br />
113. Chapter 168 Prisons | The Laws of Barbados §16(1-2), p.12. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf<br />
<br />
114. Chapter 168 Prisons | The Laws of Barbados §45(1), p.24. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf<br />
<br />
115. Chapter 116A Magistrate's Courts | The Laws of Barbados §57(1-2), p.52-53. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf<br />
<br />
116. Chapter 116A Magistrate's Courts | The Laws of Barbados §57, p.52-53. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf<br />
<br />
117. Chapter 116A Magistrate's Courts | The Laws of Barbados §57(2)(b), p.52-53. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf<br />
<br />
118. Chapter 116A Magistrate's Courts | The Laws of Barbados §57(1-2), p.52-53. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf<br />
<br />
119. Chapter 116A Magistrate's Courts | The Laws of Barbados §116(1), p.86. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf<br />
<br />
120. Chapter 116A Magistrate's Courts | The Laws of Barbados §124(1), p.89. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf<br />
<br />
121. Chapter 168 Prisons | The Laws of Barbados §43, p.24. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf<br />
<br />
122. Chapter 168 Prisons | The Laws of Barbados §20(1), p.13. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf<br />
<br />
123. Chapter 168 Prisons | The Laws of Barbados §40, p.22-23. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf<br />
<br />
124. Chapter 168 Prisons | The Laws of Barbados §66(g), p.33. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf<br />
<br />
125. Chapter 168 Prisons | The Laws of Barbados §56(1), p.29-30. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf<br />
<br />
126. Chapter 168 Prisons | The Laws of Barbados §52-54, p.27-29. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf<br />
<br />
127. Chapter 168 Prisons | The Laws of Barbados §33, p.20. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf<br />
<br />
128. Chapter 168 Prisons | The Laws of Barbados §37, p.21. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf<br />
<br />
129. Chapter 168 Prisons | The Laws of Barbados §14(5), p.12. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf<br />
<br />
130. Chapter 127 Criminal Procedure | The Laws of Barbados §9(A), p.7. https://www.legal-tools.org/doc/5a90c2/pdf/<br />
<br />
131. Chapter 168 Prisons | The Laws of Barbados §48(1), p.26. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf<br />
<br />
132. Chapter 138 Juvenile Offenders Act | The Laws of Barbados §2, p.3. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/JuvenileOffendersCAP138.pdf<br />
<br />
133. Chapter 138 Juvenile Offenders Act | The Laws of Barbados §13(1-3), p.11. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/JuvenileOffendersCAP138.pdf<br />
<br />
134. Chapter 138 Juvenile Offenders Act | The Laws of Barbados §3(1-7), p.3. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/JuvenileOffendersCAP138.pdf<br />
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135. Chapter 146A Protection of Children | The Laws of Barbados. https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/ProtectionofChildrenCAP146A.pdf</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Barbados&diff=381673Barbados2025-07-30T09:31:00Z<p>IBJadmin: Created page with "{{Languages|English}} <div class="box" style="padding: 40px; font-size: 1.5em; font-family: Arial, sans-serif; line-height: 1.5; border: 3px solid yellow; background-color: #FFFF00; text-align: center; margin: 30px;"> ⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>. </div> {| s..."</p>
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* Constitution of Barbados <ref>https://www.oas.org/dil/the_constitution_of_barbados.pdf<br />
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* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
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<br />
==Background== <br />
Barbados is a tropical Caribbean island that was settled by the British in 1627 who established sugar plantations worked by enslaved Africans. By 1834, Barbados had become less dominant in sugar production and slavery was abolished. The economy remained fueled by sugar, rum, and molasses with an abundance of petroleum, fish, and natural gas. Barbados gained independence from the British in 1966, leading to a surge in tourism and manufacturing. In 2021, Amendment No.2 Bill of the Constitution established Barbados as a parliamentary republic.<br><br />
<br />
Today, Barbados is most densely populated in the eastern Caribbean where ⅓ of the population (~68,046 people), at a total of 204,139 people, lives in urban areas. Nearly 92% of the population is of African descent with small portions of mixed, White, and East Indian groups. The official language of Barbados is English with Bajan—an English-based creole language—spoken informally. The dominant religion of the state is Protestantism (66.4%) with Roman Catholicism (3.8%) and other Christian religions (5.4%) following behind.<br><br />
<br />
==Legal system== <br />
Barbados operates under a common law legal system with no judicial review of legislative acts. The judicial hierarchy consists of the Magistrates' Courts, the High Court, and the Caribbean Court of Justice, with the Judicial Committee of the Privy Council serving as the final stage for appeals.<br><br />
<br />
==Legal aid== <br />
===State-sponsored legal aid=== <br />
Barbados provides state-sponsored legal aid through Chapter 112A Community Legal Services Act (CLSC). Legal aid is issued to applicants who qualify based on financial means, determined by income, property, number of dependents, and other relevant financial burdens. Aid covers criminal matters including capital offenses, manslaughter, infanticide, concealment of birth, rape, offences where minors are charged, and many other indictable offenses. Aid covers civil matters including all family law matters except divorce, cases involving minors, tenants/tenantries, enforcement of protective provisions, and applications for a writ of habeas corpus. Recipients may be required to pay a contribution toward the cost of the services.<br><br />
<br />
===NGOs providing pro bono legal aid=== <br />
Existing NGOs and organizations that provide pro bono legal aid include the Barbados Bar Association which manages a pro bono panel; the SAVE Foundation which provides legal support for victims of domestic violence through partnerships; the Men's Educational Support Association (MESA), which provides legal referrals for fathers and families in domestic crises; Barbados Gays and Lesbians Against Discrimination (B-GLAD) which provides advocacy and legal support services to protect LGBTQ+ rights; and The National Organization of Women (NOW) which has a network of legal aid to empower women and free them from violence. Additionally, AccessLegal is a Caribbean network and regional initiative to connect clients with lawyer volunteers.<br><br />
<br />
===Number of lawyers=== <br />
As of October 2024, the Attorney General of Barbados noted that there are just over 1,000 practicing attorneys on the island (referring to attorneys-at-law, barristers, solicitors, and excluding non-active lawyers).<br><br />
<br />
==Sources of defendant's rights== <br />
===National sources of defendant's rights=== <br />
National sources of defendant's rights can be found in the Constitution of Barbados which was adopted in 1966, scrapping the earlier government (Order in Council) and was later revised in 2021. The Evidence Act, known as Chapter 121, and the Criminal Procedure Code, known as Chapter 127, both outline procedural safeguards for defendants like rules of evidence, burdens of proof, and judicial discretion.<br><br />
<br />
===International sources of defendant's rights===<br />
Defendant's rights are protected by international human rights treaties. Barbados is subject to the International Covenant on Civil and Political Rights (ICCPR), which protects the right to a fair trial, presumption of innocence, legal assistance, and equality before courts. The Universal Declaration of Human Rights (UDHR), although not binding, influences in some capacity domestic law by protecting the right to fair and public hearing, presumption of innocence, and right to defense. Because Barbados follows commonwealth traditions, it follows UK precedents such as having a Judicial Committee of the Privy Council (JCPC) that is the final stage for appeals and the Caribbean Court of Justice (CCJ) which handles regional matters.<br><br><br />
<br />
==Rights of the Accused==<br />
<br />
===Right Against Unlawful Arrests, Searches and Seizures=== <br />
According to the Barbados Constitution, no person or their property shall be searched or entered by others on their premise without consent under section 17. However, it is permissible to do so when in the interests of defense, public safety, order, morality, health, town/country planning, development/utilization of minerals, and development/utilization of any property to "promote public benefit." It is also permissible to search someone or their property if for the purpose of protecting other people's rights, to inspect a crime, to enforce an order from the court, or prevent/detect criminal offenses.<br><br />
<br />
===Right Against Unlawful Detention=== <br />
Section 13(4) of the Barbados Constitution stipulates that any person unlawfully arrested or detained shall be entitled to compensation.<br><br />
<br />
===Right Not to be Tortured or Ill-Treated=== <br />
According to the Barbados Constitution, no person shall be subjected to torture, inhuman/degrading punishment, or other treatment under section 15.<br><br />
<br />
===Right to Medical Care=== <br />
The Barbados Constitution does not explicitly contain a right to medical care.<br><br />
<br />
===Right to be Informed of Charges=== <br />
Pursuant to section 13(2) of the Barbados Constitution, any person who is arrested or detained must be informed as soon as possible, in a language they understand, of their charges.<br><br />
<br />
===Right to Presumption of Innocence=== <br />
The Constitution of Barbados presumes defendants to be innocent until they are proved or have pleaded guilty.<br><br />
<br />
===Right Against Self-Incrimination=== <br />
After being informed of one's charges, the Barbados Constitution section 13(2) allows the accused to immediately, at their own expense, retain and instruct a legal advisor of their own choice.<br><br />
<br />
===Right to Counsel and Effective Assistance=== <br />
The lawyer that is retained and instructed by the accused must be a person entitled to practice in Barbados as an attorney-at-law.<br><br />
<br />
===Right to Present a Defense=== <br />
According to section 18 of the Barbados Constitution, all defendants charged with a criminal offense are permitted to defend themselves before the court in person or by legal representation, and provided with adequate time and facilities to prepare that defense.<br><br />
<br />
===Right to Due Process=== <br />
Section 18(2) of the Barbados Constitution outlines procedural fairness in jury setting and sets up due process rights for defendants.<br><br />
<br />
===Right to Equal Protection of the Laws=== <br />
Section 23 of the Barbados Constitution ensures that no law is discriminatory in itself or in its effect, and further, that no person is treated in a discriminatory manner.<br><br />
<br />
===Right to Bail=== <br />
The Barbados Constitution guarantees entitlement to release unless justified otherwise, setting a foundation for bail which is elaborated on in more detail in the criminal code.<br><br />
<br />
===Right Against Ex Post Facto Prosecution=== <br />
In section 18 of the Barbados Constitution, it's stated that no person should be held guilty for any act that wasn't an offense at the time it was committed, and further, no penalty should be imposed that is more severe than the penalty applicable at the time it was committed.<br><br />
<br />
===Right Against Double Jeopardy=== <br />
In the same section, the Barbados Constitution protects people from being tried for the same crime twice.<br><br />
<br />
===Right to a Fair Trial=== <br />
Section 18 of the Barbados Constitution provides defendants with the right to a fair trial.<br><br />
<br />
===Right to a Trial by Jury=== <br />
The Criminal Procedure Code of Barbados states that anyone who pleads not guilty and has therefore put themselves up for trial is entitled to a jury.<br><br />
<br />
===Right to a Speedy Trial=== <br />
Section 18 of the Barbados Constitution provides defendants with the right to a trial within reasonable time.<br><br />
<br />
===Right to an Impartial Judge=== <br />
Section 18 of the Barbados Constitution provides defendants with the right to an impartial and independent court established by law.<br><br />
<br />
===Right to Language Interpretation=== <br />
The Barbados Constitution ensures that when informing someone of their charges they have the right to language interpretation. This notice will also be provided in a written statement no more than five days after being detained in their own language. At trial, the defendant has the right to a language interpreter at no cost.<br><br />
<br />
===Right to Habeas Corpus=== <br />
Section 13 of the Barbados Constitution states that no person shall be deprived of their personal liberty unless authorized by law.<br><br />
<br />
===Capital Punishment=== <br />
Section 12 of the Barbados Constitution states that no person shall be deprived of life intentionally except in the case of the death penalty or other circumstances reasonably justifiable and permitted by law.<br><br />
<br />
===Right to Appeal=== <br />
The Barbados Constitution provides the right to appeal.<br><br><br />
<br />
==Rights of Counsel==<br />
<br />
===Right to Provide Representation=== <br />
Section 18 of the Barbados Constitution states that every person charged with a criminal offense shall be permitted to defend themself in court by a legal representative.<br><br />
<br />
===Right of Access to the Client=== <br />
The Barbados Constitution provides the right to legal representation of one's own choice and at one's own expense.<br><br />
<br />
===Right to Information=== <br />
The Barbados Constitution stipulates that the arrested/detained ought to be provided as soon as reasonably practicable information on their arrest and to be able to discuss it with counsel.<br><br />
<br />
===Right to Confidential Communication with the Client=== <br />
Any person arrested or detained is entitled to private communication with their lawyer.<br><br><br />
<br />
==Means of Protecting or Enforcing Rights==<br />
<br />
===Exclusionary Rule=== <br />
Chapter 121 of Evidence outlines exclusionary rules, including excluding hearsay evidence, any evidence that would result in unfairness or prejudice at trial, and confessions.<br><br />
<br />
===Nullity of Procedure=== <br />
The Criminal Procedure Code of Barbados ensures that if an indictment is improperly filed that it is quashed, which is a form of declaring it null and void. Procedural irregularities in indictment, committal, or evidence submission can lead to a quashing of charges.<br><br />
<br />
===Motions=== <br />
Applications for adjournments, variation of bail, or objections to proceedings—these procedural acts effectively function as motions. For example, the Magistrate's Courts Act allows parties to request adjournments of trials under section 32, and to raise objections to information, complaint, conviction or order under section 255, which functionally resemble motions to dismiss or suppress.<br><br />
<br />
===Contempt=== <br />
Section 259 of the Magistrate's Courts Act penalizes a person who, having been summoned to give evidence, neglects or refuses to appear, with potential punishment for contempt.<br><br />
<br />
===Civil Actions=== <br />
According to section 20 of the Barbados Constitution, every person is granted freedom of expression, including holding opinions and communicating them without interference. Section 21 grants the right to assembly, while there are some restrictions placed on this freedom.<br><br><br />
<br />
==Pre-trial Procedures==<br />
<br />
===Police procedures=== <br />
Chapter 167, the Police Act, governs police procedures in Barbados.<br><br />
<br />
====Complaint/information==== <br />
In section 2 of the Criminal Procedure Code, Barbados defines "information" as part of what constitutes an indictment. Section 4 governs how bills of indictment charging any person with an indictable offence may be preferred by any person before the High Court.<br><br />
<br />
====Arrest, Search and Seizure Laws==== <br />
Police are authorized to stop and question individuals in public places between 8:00PM and 5AM under suspicion pursuant to section 20 of the Police Act. Police are authorized to arrest—without a warrant—persons found loitering in public at night or carrying tools of housebreaking without a lawful excuse, any person committing a breach of peace, assaulting a police officer, or is suspected upon reasonable grounds of having committed an arrestable offense. Officers may also arrest any person committing an offense within view whose name and residence are unknown and cannot be ascertained.<br><br />
<br />
====Pre-trial Detention==== <br />
Section 24 in the Code of Criminal Procedures states that where any application is made to a judge for the release of a prisoner on bail, such application may be accepted or denied. Pre-trial detention is implied through procedures involving commitment and arraignment.<br><br />
<br />
====Searches==== <br />
Section 21 of the Police Act allows taking measurements, photographs, and fingerprints of persons in custody, however, this requires a court order if the individual refuses. Section 39 of the Police Act grants police broad powers to search vessels in port if they have reasonable grounds to suspect there is on board any property stolen or unlawfully obtained on the premises. Section 58 allows the search and seizure of property and unclaimed articles believed to be connected to an offense.<br><br />
<br />
====Lineups and Other Identification Procedures====<br />
Lineups are not specifically addressed in any Barbados statutes. Section 21 of the Police Act allows the taking of photographs, fingerprints, and measurements of persons in custody. If the person refuses, a magistrate may order compliance.<br><br />
<br />
====Interrogation==== <br />
There is no statutory requirement for cautioning suspects, presence of counsel, or recording of statements before or after formal charges. The Evidence Act describes what kind of evidence ought to be excluded to ensure a fair trial and the Police Act includes a disciplinary code that has consequences for abuse of authority, improper treatment of suspects, and violent or coercive behavior.<br><br><br />
<br />
==Court Procedures==<br />
<br />
===Pre-Trial=== <br />
According to section 24, where a person has been committed for sentence and an indictment against them has been preferred they must be brought before the high court, and if they fail to appear, a warrant may be issued for their arrest.<br><br />
<br />
====Charging Instrument==== <br />
Trial proceedings commence by information, which can lead to a summons or warrant. According to Section 12 of the Magistrate's Courts Act, an issue of summons directs a person requiring them to appear before the magistrate of that district to answer to the information, or suspicion of committing an offense.<br><br />
<br />
====Preliminary Hearing==== <br />
In Barbados, preliminary hearings are called committal proceedings and generally an examining magistrate will sit in open court, evidence given before the magistrate shall be given in presence of the accused, and the defense can ask the witness questions. However, evidence can be given in the absence of the defendant if their behavior is disorderly or they can't be present for health reasons. After the preliminary hearing, if the magistrate believes there is enough evidence for a jury trial, they must commit the defendant to the next High Court session, otherwise they are released.<br><br />
<br />
====Pre-trial Motions==== <br />
Barbados statutes don't explicitly mention "motions" but pre-trial decisions can include jurisdictional issues and amendments. Section 10 of the Criminal Procedure Act addresses procedural objections that may arise before or after trial. It allows a trial to proceed despite technical defects in the indictment unless a formal motion to quash the indictment is made at trial.<br><br />
<br />
====Discovery==== <br />
Barbados does not have formal "discovery" procedure, but it allows for access to depositions and written statements in preliminary/committal hearings. Section 132 of the Magistrate's Courts Act allows the admissibility of written statements in preliminary inquiries to the like extent as oral evidence. Sections 42 and 97 permit parties to copies of proceedings. Section 25 of the Criminal Procedure Act allows depositions of ill, deceased, or absent witnesses to be read at trial.<br><br />
<br />
===Trial=== <br />
Section 31 of the Magistrate's Courts Act sets out the procedure of trial and how a magistrate tries a case. When the accused appears in court, the magistrate must state the substance of the information (the charge) and ask whether the accused pleads guilty or not guilty. The magistrate will then hear the evidence from both sides (prosecution and defense), and based on that, either convict the accused or dismiss the information. If the accused pleads guilty, the magistrate may convict without hearing any evidence.<br><br />
<br />
====Judges==== <br />
In Barbados, the roles and powers of judges differ depending on whether they sit in the Magistrates' Courts or the High Court. Magistrates are judicial officers appointed under the Magistrate's Courts Act who possess the authority to preside over summary trials and committal proceedings for indictable offences. High Court judges preside over trials on indictment, oversee jury trials, rule on evidentiary matters, instruct juries, and impose sentences within the scope of their statutory authority.<br><br />
<br />
===Sentencing=== <br />
Sentencing provisions are governed by the Criminal Procedure Act of Barbados in section 11. This section outlines that only offenses specifically made punishable by death under statute can result in capital punishment. All other sentences are imposed either as specified by the offense-specific statute or, where silent, up to two years' imprisonment or a fine, as determined by the High Court. The court may also structure sentences consecutively when the offender is already serving time.<br><br />
<br />
===Appeals=== <br />
The Magistrate's Courts Act extensively covers appeals from summary trials. Section 240 sets the procedure for filing an appeal, including deadlines (within 7 days of conviction or sentence). Sections 242-243 lay out admissible grounds for appeal, such as lack of jurisdiction, legal error, and admission of inadmissible evidence. Section 260 empowers the Court of Appeal to affirm, amend, or reverse decisions, substitute sentences or remit the case to the magistrate.<br><br />
<br />
====Ineffective Assistance of Counsel==== <br />
While Barbados law does not have a codified standard regarding ineffective assistance of counsel, section 243 of the Magistrate's Courts Act allows appeals on grounds such as significant legal errors or omissions affecting the case's merits. This framework could encompass claims of ineffective assistance in practice where counsel's failure undermines the fairness of the trial.<br><br />
<br />
====Collateral Remedies==== <br />
Collateral remedies such as habeas corpus are protected under section 13 of the Barbados Constitution, which provides that no person shall be deprived of liberty except by due process of law. While the statutes do not explicitly detail habeas corpus procedures, this constitution provision implies its availability as a fundamental safeguard.<br><br><br />
<br />
==Rights in Prison==<br />
<br />
===Right to Humane Conditions of Confinement=== <br />
Under Section 36 of the Prisons Act, the Minister is responsible for ensuring "sufficient accommodation" in all prisons. Cells must be certified by both the Officer-in-Charge and medical officer to ensure they meet adequate standards for health, lighting, ventilation, and communication with officers.<br><br />
<br />
===Right to Medical Care in Prison=== <br />
Under section 10 of the Prisons Act, each prison must have a designated medical officer. Section 16 requires the medical officer to inspect prisoners daily, maintain health records, and inspect cooking/sanitation facilities monthly. Section 45 allows the Officer-in-Charge, upon advice from the medical officer, to order the transfer of ill prisoners to hospitals.<br><br />
<br />
===Right to Mental Health Care=== <br />
Mental health care is addressed under section 57 which allows a magistrate to order a mental examination if needed. The magistrate may require the accused to see one or two practitioners and to comply with institutional or practitioner directives. The duties of the medical officer under section 16 are broad and include oversight of both physical and mental health.<br><br />
<br />
===Rights of Special Populations=== <br />
====Women==== <br />
Section 33 of the Prisons Act mandates that in every prison where there are women prisoners, there must be a woman prison officer responsible for their discipline and care. Section 37 requires the strict separation of male and female prisoners into different buildings or parts of buildings. Section 14 guarantees religious freedom by allowing women to receive chaplains of their own denominations.<br><br />
<br />
====LGBTQ+ Prisoners==== <br />
There are no specific provisions protecting the rights of LGBTQ+ people in prison in either the Constitution or Criminal Code.<br><br />
<br />
====Mentally Ill Prisoners==== <br />
According to section 9, there is a special verdict where the defendant can be found not guilty of the act charged against them by reason of insanity. However, there are not comprehensive protections or procedures for mentally ill prisoners.<br><br />
<br />
====Juveniles==== <br />
Section 48 of the Prisoners Act allows young offenders under age 21 who receive a sentence of up to 3 months or are jailed for minor non-payment to opt for supervised public work instead of imprisonment—with their consent and the Superintendent's approval. The Juvenile Offenders Act defines a juvenile as under 16 years old, mandates that juveniles not be tried as adults, that juveniles should not be imprisoned with adults unless no suitable accommodation exists, and that special courts handle juvenile cases.<br><br><br />
<br />
==Sources==<br />
<br />
<br />
[^1]: [Barbados | The World Factbook](https://www.cia.gov/the-world-factbook/countries/barbados/)<br />
<br />
[^2]: [Barbados | The World Factbook](https://www.cia.gov/the-world-factbook/countries/barbados/)<br />
<br />
[^3]: [Chapter 112A Community Legal Services | The Laws of Barbados](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/CommunityLegalServicesCAP112A.pdf)<br />
<br />
[^4]: [Chapter 112A Community Legal Services | The Laws of Barbados, First Schedule, Part I, p.16-17](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/CommunityLegalServicesCAP112A.pdf)<br />
<br />
[^5]: [Chapter 112A Community Legal Services | The Laws of Barbados, First Schedule, Part II, p.17](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/CommunityLegalServicesCAP112A.pdf) <br />
<br />
[^6]: [Chapter 112A Community Legal Services | The Laws of Barbados, Statement of Purposes, First Schedule, Part III, General, 26(1), p.13](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/CommunityLegalServicesCAP112A.pdf) <br />
<br />
[^7]: [Bar Association Members to Offer Free Legal Advice | The Barbados Advocate](https://www.barbadosadvocate.com/news/bar-association-members-offer-free-legal-advice) <br />
<br />
[^8]: [Men’s Educational Support Association](https://mesabarbados.wordpress.com/)<br />
<br />
[^9]: [Barbados Glad | Instagram](https://www.instagram.com/barbadosglad/?hl=en) <br />
<br />
[^10]: [National Organization of Women (NOW)](https://cpdcngo.org/ngo-resource-directory/national-organisation-of-women/)<br />
<br />
[^11]: [AccessLegal | Caribbean Agency for Justice Solutions](https://caribbeanjustice.org/what-we-do/)<br />
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[^12]: [Major Changes Coming to Legal Professions Act | Barbados Today](https://barbadostoday.bb/2024/10/12/major-changes-coming-to-legal-professions-act/)<br />
<br />
[^13]: [The Constitution of Barbados | The Laws of Barbados](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^14]: [Chapter 121 Evidence | The Laws of Barbados](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/EvidenceCAP121.pdf)<br />
<br />
[^15]: [Chapter 127 Criminal Procedure | The Laws of Barbados](https://www.legal-tools.org/doc/5a90c2/pdf/)<br />
<br />
[^16]: [International Covenant on Civil and Political Rights | United Nations](https://treaties.un.org/pages/viewdetails.aspx?chapter=4&clang=_en&mtdsg_no=iv-4&src=ind)<br />
<br />
[^17]: [75 Years of Human Rights: Barbados Honours Human Rights Defenders | United Nations](https://caribbean.un.org/en/258776-75-years-human-rights-barbados-honours-human-rights-defenders)<br />
<br />
[^18]: [Commonwealth Caribbean Court Systems: Privy Council | The University of the West Indies](https://libguides.uwi.edu/Court-Systems/Privy-Council)<br />
<br />
[^19]: [Caribbean Court of Justice | Barbados Judicial System](https://www.barbadoslawcourts.gov.bb/judicial-system/caribbean-court-of-justice)<br />
<br />
[^20]: [The Constitution of Barbados | The Laws of Barbados §17(1), p.26](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^21]: [The Constitution of Barbados | The Laws of Barbados §17(2)(a-e), p.26-27](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^22]: [The Constitution of Barbados | The Laws of Barbados §13(4), p.21](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^23]: [The Constitution of Barbados | The Laws of Barbados §15, p.23](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^24]: [The Constitution of Barbados | The Laws of Barbados §13(2), p.20](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^25]: [The Constitution of Barbados | The Laws of Barbados §18(1)(a), p.27](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^26]: [The Constitution of Barbados | The Laws of Barbados §13(2), p.20](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^27]: [The Constitution of Barbados | The Laws of Barbados §13(2), p.20](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^28]: [The Constitution of Barbados | The Laws of Barbados §18(2)(c,d), p.28](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^29]: [The Constitution of Barbados | The Laws of Barbados §18(2), p.27](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^30]: [The Constitution of Barbados | The Laws of Barbados §23(1)(a,b), p.35](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^31]: [The Constitution of Barbados | The Laws of Barbados §13(2)(b), p.21](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^32]: [The Constitution of Barbados | The Laws of Barbados §18(4), p.28](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^33]: [The Constitution of Barbados | The Laws of Barbados §18(5), p.28](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^34]: [The Constitution of Barbados | The Laws of Barbados §18(1), p.27](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^35]: [Chapter 127 Criminal Procedure | The Laws of Barbados](https://www.legal-tools.org/doc/5a90c2/pdf/) [§](https://www.oas.org/dil/the_constitution_of_barbados.pdf)[7(1), p.5](https://www.legal-tools.org/doc/5a90c2/pdf/)<br />
<br />
[^36]: [The Constitution of Barbados | The Laws of Barbados §18(1), p.27](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^37]: [The Constitution of Barbados | The Laws of Barbados §18(1), p.27](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^38]: [The Constitution of Barbados | The Laws of Barbados §13(1), p.19](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^39]: [The Constitution of Barbados | The Laws of Barbados §12(1), p.18](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^40]: [The Constitution of Barbados | The Laws of Barbados §85-88, p.7](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^41]: [The Constitution of Barbados | The Laws of Barbados §18(1)(d), p.28](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^42]: [The Constitution of Barbados | The Laws of Barbados §18(1)(d), p.28](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^43]: [The Constitution of Barbados | The Laws of Barbados §13(2), p.20](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^44]: [The Constitution of Barbados | The Laws of Barbados §13(2), p.20](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^45]: [Chapter 121 Evidence | The Laws of Barbados §7, p.58](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/EvidenceCAP121.pdf)<br />
<br />
[^46]: [Chapter 127 Criminal Procedure | The Laws of Barbados §4(5), p.5](https://www.legal-tools.org/doc/5a90c2/pdf/)<br />
<br />
[^47]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §32, 255, p.141](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^48]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §259, p.143](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^49]: [The Constitution of Barbados | The Laws of Barbados §20(1), p.31](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^50]: [The Constitution of Barbados | The Laws of Barbados §21(1), p.31](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^51]: [Chapter 127 Criminal Procedure | The Laws of Barbados](https://www.legal-tools.org/doc/5a90c2/pdf/) [§](https://www.oas.org/dil/the_constitution_of_barbados.pdf)[2-3, p.3-4](https://www.legal-tools.org/doc/5a90c2/pdf/)<br />
<br />
[^52]: [Chapter 167 Police | The Laws of Barbados §20(1)(a-j), 20(2), p.13-14](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PoliceCAP167.pdf)<br />
<br />
[^53]: [Chapter 167 Police | The Laws of Barbados §20(1)(a-j), 20(2), p.13-14](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PoliceCAP167.pdf)<br />
<br />
[^54]: [Chapter 167 Police | The Laws of Barbados §20(1)(a-j), p.13-14](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PoliceCAP167.pdf)<br />
<br />
[^55]: [Chapter 167 Police | The Laws of Barbados §20(3), p.15](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PoliceCAP167.pdf)<br />
<br />
[^56]: [Chapter 127 Criminal Procedure | The Laws of Barbados](https://www.legal-tools.org/doc/5a90c2/pdf/) [§](https://www.oas.org/dil/the_constitution_of_barbados.pdf)[24, p.12](https://www.legal-tools.org/doc/5a90c2/pdf/)<br />
<br />
[^57]: [Chapter 167 Police | The Laws of Barbados §21(1), p.15](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PoliceCAP167.pdf)<br />
<br />
[^58]: [Chapter 167 Police | The Laws of Barbados §39(a-e), p.32](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PoliceCAP167.pdf)<br />
<br />
[^59]: [Chapter 167 Police | The Laws of Barbados §58(1), p.30](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PoliceCAP167.pdf)<br />
<br />
[^60]: [Chapter 121 Evidence | The Laws of Barbados §7, p.58](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/EvidenceCAP121.pdf)<br />
<br />
[^61]: [Chapter 127 Criminal Procedure | The Laws of Barbados §4(5), p.5](https://www.legal-tools.org/doc/5a90c2/pdf/)<br />
<br />
[^62]: [Chapter 167 Police | The Laws of Barbados §32A-35, p.24-29](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PoliceCAP167.pdf)<br />
<br />
[^63]: [Chapter 167 Police | The Laws of Barbados §21(1), p.15](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PoliceCAP167.pdf)<br />
<br />
[^64]: [Chapter 167 Police | The Laws of Barbados §21(2), p.15](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PoliceCAP167.pdf)<br />
<br />
[^65]: [Chapter 121 Evidence | The Laws of Barbados §7, p.58](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/EvidenceCAP121.pdf)<br />
<br />
[^66]: [Chapter 167 Police | The Laws of Barbados §32A-35, p.24-29](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PoliceCAP167.pdf)<br />
<br />
[^67]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §24(1-3), p.33-34](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^68]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §12(1)(a), p.25-26](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^69]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §13(1), p.27](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^70]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §17(1-2), p.29](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^71]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §17(3)(a-b), p.29](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^72]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §19, p.30](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^73]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §20, p.30-31](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^74]: [Chapter 127 Criminal Procedure | The Laws of Barbados §10, p.7](https://www.legal-tools.org/doc/5a90c2/pdf/)<br />
<br />
[^75]: [Chapter 127 Criminal Procedure | The Laws of Barbados §10, p.7](https://www.legal-tools.org/doc/5a90c2/pdf/)<br />
<br />
[^76]: [Chapter 127 Criminal Procedure | The Laws of Barbados §10, p.7](https://www.legal-tools.org/doc/5a90c2/pdf/)<br />
<br />
[^77]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §132, p.92-93](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^78]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §42, §97, p.42, 73](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^79]: [Chapter 127 Criminal Procedure | The Laws of Barbados §25(1), p.12](https://www.legal-tools.org/doc/5a90c2/pdf/)<br />
<br />
[^80]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §31 p.36](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^81]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §31 p.36](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^82]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §31 p.36](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^83]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §31 p.36](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^84]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §32-34, p.36-39](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^85]: [Chapter 127 Criminal Procedure | The Laws of Barbados §3, p.4](https://www.legal-tools.org/doc/5a90c2/pdf/)<br />
<br />
[^86]: [Chapter 127 Criminal Procedure | The Laws of Barbados §7(1), p.5](https://www.legal-tools.org/doc/5a90c2/pdf/)<br />
<br />
[^87]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §7(2), p.6](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^88]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §33(1-4), p.37-38](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^89]: [Chapter 127 Criminal Procedure | The Laws of Barbados §8, p.13](https://www.legal-tools.org/doc/5a90c2/pdf/)<br />
<br />
[^90]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §170(1), p.109](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^91]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §167-168, p.108](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^92]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §168(1), p.108](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^93]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §3(1-3), p.23](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^94]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §36, p.36-37](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^95]: [Chapter 127 Criminal Procedure | The Laws of Barbados §3, p.4](https://www.legal-tools.org/doc/5a90c2/pdf/)<br />
<br />
[^96]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §24, 26, 27, p.36-37](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^97]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §168(1), p.12-13](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^98]: [Chapter 127 Criminal Procedure | The Laws of Barbados §11, p.8](https://www.legal-tools.org/doc/5a90c2/pdf/)<br />
<br />
[^99]: [Chapter 127 Criminal Procedure | The Laws of Barbados §11(1), p.8](https://www.legal-tools.org/doc/5a90c2/pdf/)<br />
<br />
[^100]: [Chapter 127 Criminal Procedure | The Laws of Barbados §11(2-4), p.8](https://www.legal-tools.org/doc/5a90c2/pdf/)<br />
<br />
[^101]: [Chapter 127 Criminal Procedure | The Laws of Barbados §11(4), p.8](https://www.legal-tools.org/doc/5a90c2/pdf/)<br />
<br />
[^102]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §240(1-2), p.135](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^103]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §242-243, p.136-137](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^104]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §260(2)(a), p.143-144](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^105]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §243(f-h), p.136-137](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^106]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §243(a-i), p.136-137](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^107]: [The Constitution of Barbados | The Laws of Barbados §13(1), p.19](https://www.oas.org/dil/the_constitution_of_barbados.pdf)<br />
<br />
[^108]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §260(2)(a-d), p.143-144](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^109]: [Chapter 168 Prisons | The Laws of Barbados §36(1), p.21](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf)<br />
<br />
[^110]: [Chapter 168 Prisons | The Laws of Barbados §36(2), p.21](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf)<br />
<br />
[^111]: [Chapter 168 Prisons | The Laws of Barbados §43, p.24](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf)<br />
<br />
[^112]: [Chapter 168 Prisons | The Laws of Barbados §10, p.11](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf)<br />
<br />
[^113]: [Chapter 168 Prisons | The Laws of Barbados §16(1-2), p.12](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf)<br />
<br />
[^114]: [Chapter 168 Prisons | The Laws of Barbados §45(1), p.24](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf)<br />
<br />
[^115]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §57(1-2), p.52-53](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^116]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §57, p.52-53](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^117]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §57(2)(b), p.52-53](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^118]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §57(1-2), p.52-53](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^119]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §116(1), p.86](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^120]: [Chapter 116A Magistrate’s Courts | The Laws of Barbados §124(1), p.89](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/Magistrate'sCourtsCAP116A.pdf)<br />
<br />
[^121]: [Chapter 168 Prisons | The Laws of Barbados §43, p.24](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf)<br />
<br />
[^122]: [Chapter 168 Prisons | The Laws of Barbados §20(1), p.13](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf)<br />
<br />
[^123]: [Chapter 168 Prisons | The Laws of Barbados §40, p.22-23](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf)<br />
<br />
[^124]: [Chapter 168 Prisons | The Laws of Barbados §66(g), p.33](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf)<br />
<br />
[^125]: [Chapter 168 Prisons | The Laws of Barbados §56(1), p.29-30](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf)<br />
<br />
[^126]: [Chapter 168 Prisons | The Laws of Barbados §52-54, p.27-29](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf)<br />
<br />
[^127]: [Chapter 168 Prisons | The Laws of Barbados §33, p.20](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf)<br />
<br />
[^128]: [Chapter 168 Prisons | The Laws of Barbados §37, p.21](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf)<br />
<br />
[^129]: [Chapter 168 Prisons | The Laws of Barbados §14(5), p.12](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf)<br />
<br />
[^130]: [Chapter 127 Criminal Procedure | The Laws of Barbados](https://www.legal-tools.org/doc/5a90c2/pdf/) [§](https://www.oas.org/dil/the_constitution_of_barbados.pdf)[9(A), p.7](https://www.legal-tools.org/doc/5a90c2/pdf/)<br />
<br />
[^131]: [Chapter 168 Prisons | The Laws of Barbados §48(1), p.26](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/PrisonsCAP168.pdf)<br />
<br />
[^132]: [Chapter 138 Juvenile Offenders Act | The Laws of Barbados §2, p.3](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/JuvenileOffendersCAP138.pdf)<br />
<br />
[^133]: [Chapter 138 Juvenile Offenders Act | The Laws of Barbados §13(1-3), p.11](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/JuvenileOffendersCAP138.pdf)<br />
<br />
[^134]: [Chapter 138 Juvenile Offenders Act | The Laws of Barbados §3(1-7), p.3](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/JuvenileOffendersCAP138.pdf)<br />
<br />
[^135]: [Chapter 146A Protection of Children | The Laws of Barbados](https://www.barbadoslawcourts.gov.bb/assets/content/pdfs/statutes/ProtectionofChildrenCAP146A.pdf)</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Criminal_Justice_Systems_Around_the_World&diff=381672Criminal Justice Systems Around the World2025-07-30T09:15:05Z<p>IBJadmin: </p>
<hr />
<div>Criminal justice systems can be loosely classified as either common, civil, Islamic or socialist law in nature. However, today many jurisdictions have adopted hybrid models that combine elements of various legal systems. Many of these systems share a common set of [[Core Values | core values]]. In addition, most criminal justice systems have adopted a [[Legality Principle | legality principle]]. Almost every criminal justice system is made of of similar [[Actors in the Criminal Justice System | actors]].<br />
<br />
==Country Pages==<br />
<div style="float: left; width: 33%"><br />
<br />
*[[Afghanistan]]<br />
*[[Albania]]<br />
*[[Algeria]]<br />
*[[Andorra]]<br />
*[[Angola]]<br />
*[[Antigua and Barbuda]]<br />
*[[Argentina]]<br />
*Armenia<br />
*[[Australia]]<br />
*[[Austria]]<br />
*[[Azerbaijan]]<br />
*[[The Bahamas]]<br />
*Bahrain<br />
*[[Bangladesh]]<br />
*[[Barbados]]<br />
*[[Belarus]]<br />
*[[Belgium]]<br />
*[[Belize]]<br />
*[[Benin]]<br />
*[[Bhutan]]<br />
*[[Bolivia]]<br />
*[[Bosnia and Herzegovina]]<br />
*[[Botswana]]<br />
*[[Brazil]]<br />
*[[Brunei]]<br />
*[[Bulgaria]]<br />
*[[Burkina Faso]]<br />
*[[Burundi]] <br />
*[[Cambodia]]<br />
*[[Cameroon]]<br />
*[[Canada]]<br />
*[[Cape Verde]]<br />
*[[République Centrafricaine|Central African Republic]]<br />
*[[Chad]]<br />
*[[Chile]]<br />
*[[China]]<br />
**[[Hong Kong]]<br />
**[[Taiwan]]<br />
*[[Colombia]]<br />
*[[Comoros]]<br />
*[[Congo, Democratic Republic of the]]<br />
*[[ République du Congo (Congo-Brazzaville)|Congo, Republic of the]]<br />
*[[Costa Rica]]<br />
*[[Croatia]]<br />
*[[Cuba]]<br />
*[[Cyprus]]<br />
*[[Czech Republic]]<br />
*[[Denmark]]<br />
*Djibouti<br />
*Dominica<br />
*[[Dominican Republic]]<br />
*East Timor<br />
*[[Ecuador]]<br />
*[[Egypt]]<br />
*[[El Salvador]]<br />
*[[Equatorial Guinea]]<br />
*[[Eritrea]]<br />
*Estonia<br />
*[[Ethiopia]]<br />
*Fiji<br />
*[[Finland]]<br />
*[[France]]<br />
**French Guiana<br />
**[[French Polynesia]]<br />
*[[Gabon]]<br />
*[[Gambia, The]]<br />
*[[Georgia]]<br />
<br />
</div><div style="float: left; width:33%"><br />
<br />
*[[Germany]]<br />
*[[Ghana]]<br />
*[[Greece]]<br />
*Grenada<br />
*[[Guatemala]]<br />
*[[Guinea]]<br />
*[[Guinea-Bissau]]<br />
*[[Guyana]]<br />
*Haiti<br />
*[[Honduras]]<br />
*[[Hungary]]<br />
*Iceland<br />
*[[India]]<br />
*[[Indonesia]]<br />
*[[Iran]]<br />
*[[Iraq]]<br />
*[[Ireland]]<br />
*[[Island of Guam]]<br />
*[[Israel]]<br />
*[[Italy]]<br />
*[[Côte d’Ivoire|Ivory Coast]]<br />
*[[Jamaica]]<br />
*[[Japan]]<br />
*Jordan<br />
*[[Kazakhstan]]<br />
*[[Kenya]]<br />
*Kiribati<br />
*[[Korea, North]]<br />
*[[South Korea|Korea, South]]<br />
*Kosovo<br />
*Kuwait<br />
*[[Kyrgyzstan]]<br />
*[[Laos]]<br />
*Latvia<br />
*[[Lebanon]]<br />
*[[Lesotho]]<br />
*[[Liberia]]<br />
*Libya<br />
*[[Liechtenstein]]<br />
*[[Lithuania]]<br />
*[[Luxembourg]]<br />
*Macedonia<br />
*[[Madagascar]]<br />
*[[Malawi]]<br />
*[[Malaysia]]<br />
*[[Maldives]]<br />
*[[Mali]]<br />
*Malta<br />
*Marshall Islands<br />
*[[Mauritania]]<br />
*[[Mauritius]]<br />
*[[Mexico]]<br />
*Micronesia<br />
*[[Moldova]]<br />
*[[Monaco]]<br />
*[[Mongolia]]<br />
*[[Montenegro]] <br />
*[[Morocco]]<br />
*[[Mozambique]]<br />
*[[Myanmar]]<br />
*[[Namibia]]<br />
*Nauru<br />
*[[Nepal]]<br />
*[[Netherlands]]<br />
*[[New Zealand]]<br />
*[[Nicaragua]]<br />
*[[Niger]]<br />
*[[Nigeria]]<br />
*Norway<br />
*[[Oman]]<br />
<br />
</div><div style="float: left; width: 33%"><br />
<br />
*[[Pakistan]]<br />
*Palau<br />
*Palestine<br />
*[[Panama]]<br />
*[[Papua New Guinea]]<br />
*[[Paraguay]]<br />
*[[Peru]]<br />
*[[Philippines]]<br />
*[[Poland]]<br />
*[[Portugal]]<br />
*[[Qatar]]<br />
*[[Romania]]<br />
*[[Russia]]<br />
*[[Rwanda]]<br />
*Saint Kitts and Nevis<br />
*[[Saint Lucia]]<br />
*Saint Vincent and the Grenadines<br />
*Samoa<br />
*San Marino<br />
*[[São Tomé and Príncipe]]<br />
*[[Saudi Arabia]]<br />
*[[Senegal]]<br />
*[[Serbia]]<br />
*[[Seychelles]]<br />
*[[Sierra Leone]]<br />
*[[Singapore]]<br />
*[[Slovakia]]<br />
*Slovenia<br />
*[[Solomon Islands]]<br />
*[[Somalia]]<br />
*[[South Africa]]<br />
*[[South Sudan]]<br />
*[[Spain]]<br />
*[[Sri Lanka]]<br />
*[[Sudan]]<br />
*Suriname<br />
*[[Swaziland]]<br />
*[[Sweden]]<br />
*[[Switzerland]]<br />
*[[Syria]]<br />
*[[Tajikistan]]<br />
*[[Tanzania]] <br />
**[[Zanzibar]]<br />
*[[Thailand]]<br />
*[[Togo]]<br />
*[[Tonga]]<br />
*[[Trinidad and Tobago]]<br />
*[[Tunisia]]<br />
*[[Turkey]]<br />
*[[Turkmenistan]]<br />
*[[Tuvalu]] <br />
*[[Uganda]] <br />
*[[Ukraine]]<br />
*[[United Arab Emirates]]<br />
*United Kingdom<br />
**[[England and Wales]]<br />
**[[Scotland]]<br />
*[[United States]]<br />
**[[Puerto Rico]]<br />
*[[Uruguay]] <br />
*[[Uzbekistan]]<br />
*[[Vanuatu]]<br />
*[[Venezuela]]<br />
*[[Vietnam]] <br />
*[[Yemen]]<br />
*[[Zambia]]<br />
*[[Zimbabwe]] <br />
<br />
<br />
<br />
</div><br />
<br />
{{Languages|Criminal Justice Systems Around the World}}<br />
<br />
==We need your help==<br />
Can you assist the creation of a country-page? Email elearning@ibj.org.<br />
<br />
----<br />
<br />
See [[Legal Aid Systems and Supporting NGOs around the world]]</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Philippines&diff=381671Philippines2025-07-21T15:42:37Z<p>IBJadmin: Philippines overhaul, written by Jenny, uploaded by Kevin</p>
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<div><br />
{{Languages|English}}<br />
<br />
<div class="box" style="padding: 40px; font-size: 1.5em; font-family: Arial, sans-serif; line-height: 1.5; border: 3px solid yellow; background-color: #FFFF00; text-align: center; margin: 30px;"><br />
⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>.<br />
</div><br />
<br />
<br />
{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;"> Legal Resources for the Philippines </h2><br />
• Constitution of the Republic of the Philippines <ref>https://www.officialgazette.gov.ph/constitutions/1987-constitution/</ref><br />
<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources </h2> <br />
<br />
• [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Introduction==<br />
<br />
===Quick summary of the context (including the country's recent history)===<br />
<br />
The Republic of Philippines, comprises 80 provinces and 120 chartered cities. The capital of the Philippines is Manila.<br />
<br />
The Philippine islands were a Spanish colony during the 16th century. In 1898, they were ceded to the US, following the Spanish-American War. In 1935, the Philippines became a self-governing commonwealth. In 1942, the Philippines fell under Japanese occupation, and on 4 July 1946 the country gained independence, with the name of Republic of the Philippines.<br />
<br />
A 20-year rule by Ferdinand Marcos ended in 1986, when a people's movement in Manila ("EDSA 1") forced him into exile, and installed Corazon Aquino as president. The current president, Benigno S. Aquino III, was elected on 30 June 2010.<br />
<br />
===Type of system (common law; civil law; hybrid)===<br />
<br />
The judicial branch is composed of the Supreme Court, court of appeals, sandigan-bayan (special courts for hearing corruption cases of government officials), inferior courts (called regional trial courts, metropolitan trial courts, municipal trial courts in cities, municipal trial courts, and municipal circuit trial courts) Shari'a courts, and quasi-courts or quasi-judicial agencies for administrative matters.<br />
The legal system is based on Spanish and Anglo-American law, and Shari'a law for Muslims.<br />
<br />
===The legal aid situation in the country:===<br />
<br />
====State Sponsored legal aid====<br />
Public Attorney's Office (PAO) is an agency under the Department of Justice. The PAO offers free legal representation, assistance, and counseling to indigent individuals in various legal cases, including criminal, civil, labor, and administrative matters.<br />
Integrated Bar of the Philippines (IBP): The IBP also provides legal aid to indigents through its Legal Aid Program and local legal aid committees.<br />
Supreme Court: The Supreme Court has established the Unified Legal Aid Service (ULAS) to enhance the delivery of legal aid.<br />
Free Legal Assistance Act of 2010: This law provides tax deductions for lawyers who offer pro bono services.<br />
<br />
====Existing NGOs providing pro bono legal aid====<br />
Saligan (Sentro ng Alternatibong Lingap Panlegal): This NGO focuses on developmental legal work for marginalized and exploited sectors, advocating for legal empowerment and representation. They work on issues like workers' rights, gender equality, and have operations throughout the Philippines.<br />
Free Legal Assistance Group (FLAG): FLAG is a nationwide human rights lawyers' organization that counters human rights abuses. It was founded in 1974 and is known for its work in defending civil liberties.<br />
University Legal Aid Offices: Several universities in the Philippines have legal aid offices that provide free legal assistance to indigent individuals. Examples include the Ateneo Legal Services Center, the University of the Philippines Office of Legal Aid, and the San Beda Legal Aid Bureau.<br />
<br />
====Number of lawyers (criminal/civil) if known====<br />
There are approximately 84,236 lawyers in the Philippines, as reflected in the Supreme Court's Roll of Attorneys. This number includes both criminal and civil lawyers<br />
<br />
===Sources of defendant's rights===<br />
<br />
====National Sources of Defendant's rights====<br />
The Constitution was promulgated on 2 February 1987. Its preamble affirms that the Filipino people promote the rule of law and a regime of truth, justice, freedom, love, equality, and peace. Moreover, Article II Section 2 declares that the Philippines adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. Article III is called "Bill of Rights", and its content resembles the American Bill of Rights.<br />
The sources of procedural criminal law are, besides the Constitution, the revised Penal Code of 1930, the New Rules of Court of 1964 Part III, IV, special laws, certain presidential orders, and letters of instruction.<br />
The Bill of Rights lists rights such as the right to life, the respect for human rights, the due process of law, the right to counsel, the right to remain silent, the freedom from excessive punishments and torture, the right to bail, the right against self incrimination, the habeas corpus, the double jeopardy, and the prohibition of ex post facto laws.<br />
<br />
==Rights of the Accused==<br />
<br />
===Right Against Unlawful Arrests, Searches and Seizures===<br />
<br />
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized (Bill of Rights, Article III Section 2)<br />
<br />
===Right Against Unlawful Detention===<br />
<br />
Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited (Bill of Rights, Article III Section 12)<br />
<br />
===Right Not to be Tortured or III-Treated===<br />
<br />
No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him (Bill of Rights, Article III Section 12)<br />
<br />
===Right to Medical Care===<br />
<br />
You have the right to avail of medical, dental and other health services readily available in the place you are detained. You have the responsibility to inform and advise us of your health problems and to follow the prescribed treatment (BJMP Region 5)<br />
<br />
===Right to be Informed of Charges===<br />
<br />
In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him (Bill of Rights, Article III Section 14)<br />
<br />
===Right to Presumption of Innocence===<br />
<br />
In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable (Bill of Rights, Article III Section 14)<br />
<br />
===Right Against Self-Incrimination===<br />
<br />
No person shall be compelled to be a witness against himself (Bill of Rights, Article III Section 17)<br />
<br />
===Right to Counsel and Effective Assistance===<br />
<br />
Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel (Bill of Rights, Article III Section 12)<br />
<br />
===Right to a Present a Defense===<br />
<br />
In all criminal prosecutions, the accused shall be entitled to the right to be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment (Rules of Criminal Procedure, Rule 115 Section C)<br />
<br />
===Right to Due Process===<br />
<br />
No person shall be held to answer for a criminal offense without due process of law (Bill of Rights, Article III Section 14)<br />
<br />
===Right to Equal Protection of the Laws===<br />
<br />
No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws (Bill of Rights, Article III Section 1)<br />
<br />
===Right to Bail===<br />
<br />
All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required (Bill of Rights, Article III Section 13)<br />
<br />
===Right Against Ex Post Facto Prosecution===<br />
<br />
No ex post facto law or bill of attainder shall be enacted (Bill of Rights, Article III Section 22)<br />
<br />
===Right Against Double Jeopardy===<br />
<br />
No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act (Bill of Rights, Article III Section 21)<br />
<br />
===Right to a Fair Trial===<br />
<br />
====Right to a Trial by Jury====<br />
Not included in the Constitution, since the legal system is based on Spanish civil law and influenced by American law. Judges are determining both questions of fact and law in criminal cases (Senate of the Philippines)<br />
<br />
====Right to a Speedy Trial====<br />
All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies (Bill of Rights, Article III Section 16)<br />
<br />
====Right to an Impartial Judge====<br />
In all criminal prosecutions, the accused shall have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence on his behalf (Bill of Rights, Article III Section 14)<br />
<br />
===Right to Language Interpretation===<br />
<br />
The right to be informed of the nature and cause of the accusation against them means that the right to language interpretation is implicitly protected under the Constitution (Columbia Human Rights Law Review)<br />
<br />
===Right to Habeas Corpus===<br />
<br />
The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion, when the public safety requires it (Bill of Rights, Article III Section 15)<br />
<br />
===Capital Punishment===<br />
<br />
Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall the death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua (Bill of Rights, Article III Section 19)<br />
<br />
===Right to Appeal===<br />
<br />
Who may appeal. Any party may appeal from a judgment or final order, unless the accused will be placed in double jeopardy (Rules of Criminal Procedure, Rule 122)<br />
<br />
==Rights of Counsel==<br />
<br />
===Right to Provide Representation===<br />
<br />
Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice (Bill of Rights, Article III Section 12)<br />
<br />
===Right of Access to the Client===<br />
<br />
Any member of the Philippine Bar shall, at the request of the person arrested or of another acting in his behalf, have the right to visit and confer privately with such person in the jail or any other place of custody at any hour of the day or night. Subject to reasonable regulations, a relative of the person arrested can also exercise the same right (Rule of Criminal Procedures, Rule 114)<br />
<br />
===Right to Information===<br />
<br />
In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him (Bill of Rights, Article III Section 14)<br />
<br />
===Right to Confidential Communication with the Client===<br />
<br />
Any member of the Philippine Bar shall, at the request of the person arrested or of another acting in his behalf, have the right to visit and confer privately with such person in the jail or any other place of custody at any hour of the day or night. Subject to reasonable regulations, a relative of the person arrested can also exercise the same right (Rule of Criminal Procedures, Rule 114)<br />
<br />
==Means of Protecting or Enforcing Rights==<br />
<br />
===Exclusionary Rule===<br />
<br />
The purpose of the exclusionary rule is to deter law enforcement in engaging in fishing expeditions, and ultimately, protect the right of the people against unreasonable searches and seizures.<br />
The constitutional guarantee against unreasonable searches and seizures is an almost faithful reproduction of the Fourth Amendment to the United States of America (US) Constitution.<br />
<br />
===Nullity of Procedure===<br />
<br />
Not explicitly stated in the Constitution, but addressed through the concept of void judgements/orders and reversible errors. Certain errors in legal proceedings can render a judgment or order completely invalid from the beginning (void). Typically, they involve violations of due process, lack of jurisdiction, or serious procedural defects.<br />
<br />
===Motions===<br />
<br />
Both the prosecution and the defense can file various motions during different stages of the criminal process, including before, during, and after the trial. These motions can range from simple requests for postponements to more complex requests for dismissal or suppression of evidence.<br />
<br />
===Contempt===<br />
<br />
Violating this section constitutes contempt of court (Criminal Procedure, Rule 126 Section 12)<br />
<br />
(a) The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath.<br />
<br />
(b) Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge shall ascertain whether section 11 of this Rule has been complained with and shall require that the property seized be delivered to him. The judge shall see to it that subsection (a) hereof has been complied with.<br />
<br />
(c) The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge.<br />
<br />
===Civil Actions===<br />
<br />
A civil action can be instituted alongside a criminal case. This means that when a crime is committed, the victim or offended party can pursue not only criminal charges against the perpetrator but also a separate civil action to recover damages or seek other civil remedies arising from the same offense (2000 Rules of Criminal Procedure)<br />
<br />
==Pre trial Procedures==<br />
<br />
===Arrest, Search and Seizure Laws===<br />
====Stops and Frisks====<br />
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized (Bill of Rights, Article III Section 2)<br />
<br />
====Arrests====<br />
No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention (Rule of Criminal Procedures, Rule 113 Section 2)<br />
<br />
It shall be the duty of the officer executing the warrant to arrest the accused and to deliver him to the nearest police station or jail without unnecessary delay (Rule of Criminal Procedures, Rule 113 Section 3)<br />
<br />
The head of the office to whom the warrant of arrest was delivered for execution shall cause the warrant to be executed within ten (10) days from its receipt (Rule of Criminal Procedures, Rule 113 Section 4)<br />
<br />
Officer can only arrest without a warrant when (Rule of Criminal Procedures, Rule 113 Section 5):<br />
<li>Suspect is committing/attempting to commit an offense during his presence<br />
<li>They have personal knowledge of facts that the person arrested has committed an offense<br />
<li>Person to be arrested is a prisoner on the run<br />
<br />
====Pre-trial detention====<br />
Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited (Bill of Rights, Article III Section 12)<br />
====Searches====<br />
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized (Bill of Rights, Article III Section 2)<br />
<br />
===Lineups and other identification procedures===<br />
====Lineups====<br />
The complaint or information must state the name and surname of the person against whom or against whose property the offense was committed, or any appellation or nickname by which such person has been or is known. If there is no better way of identifying him, he must be described under a fictitious name (Revised Rules of Criminal Procedure, Rule 110 Section 12)<br />
<br />
(a) In offenses against property, if the name of the offended party is unknown, the property must be described with such particularity as to properly identify the offense charged.<br />
<br />
(b) If the true name of the person against whom or against whose properly the offense was committed is thereafter disclosed or ascertained, the court must cause the true name to be inserted in the complaint or information and the record.<br />
<br />
(c) If the offended party is a juridical person, it is sufficient to state its name, or any name or designation by which it is known or by which it may be identified, without need of averring that it is a juridical person or that it is organized in accordance with law. (12a)<br />
<br />
===Interrogation (Bill of Rights, Article III Section 12)===<br />
Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.<br />
No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.<br />
Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.<br />
The law shall provide for penal and civil sanctions for violations of this Section as well as compensation to the rehabilitation of victims of torture or similar practices, and their families.<br />
<br />
==Court Procedures==<br />
<br />
===Pre-Trial (Rules of Criminal Procedure, Rule 118)===<br />
<br />
In all criminal cases cognizable by the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court and Municipal Circuit Trial Court, the court shall after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is provided for in special laws or circulars of the Supreme Court, order a pre-trial conference to consider the following:<br />
<li>(a) plea bargaining;<br />
<li>(b) stipulation of facts;<br />
<li>(c) marking for identification of evidence of the parties;<br />
<li>(d) waiver of objections to admissibility of evidence;<br />
<li>(e) modification of the order of trial if the accused admits the charge but interposes a lawful defense<br />
<br />
====Pre-trial agreement====<br />
All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused. The agreements covering the matters referred to in section 1 of this Rule shall be approved by the court.<br />
<br />
====Non-appearance at pre-trial conference====<br />
If the counsel for the accused or the prosecutor does not appear at the pre-trial conference and does not offer an acceptable excuse for his lack of cooperation, the court may impose proper sanctions or penalties.<br />
<br />
====Pre-trial order====<br />
Pre-trial order. After the pre-trial conference, the court shall issue an order reciting the actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the trial to matters not disposed of, and control the course of the action during the trial, unless modified by the court to prevent manifest injustice.<br />
<br />
===Trial (Rule of Criminal Procedure, Rule 119)===<br />
<br />
====Nature of the Trial====<br />
Trial once commenced shall continue from day to day as far as practicable until terminated. It may be postponed for a reasonable period of time for good cause (Section 2)<br />
Following Order (Section 11)<br />
<li>(a) The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability<br />
<li>(b) The accused may present evidence to prove his defense, and damages, if any, arising from the issuance of a provisional remedy in the case.<br />
<li>(c) The prosecution and the defense may, in that order, present rebuttal and sur-rebuttal evidence unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue.<br />
<li>(d) Upon admission of the evidence of the parties, the case shall be deemed submitted for decision unless the court directs them to argue orally or to submit written memoranda.<br />
<li>(e) When the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified. (3a)<br />
<br />
====Time to Prepare====<br />
After a plea of not guilty is entered, the accused shall have at least fifteen (15) days to prepare for trial. The trial shall commence within thirty (30) days from receipt of the pre-trial order (Section 1)<br />
<br />
====Defendant====<br />
Person formally accused of committing a crime. Entitled to various rights and protections throughout the legal proceedings outlined above.<br />
<br />
====Lawyers====<br />
When a prosecutor, his assistant or deputy is disqualified to act due to any of the grounds stated in section 1 of Rule 137 or for any other reasons, the judge or the prosecutor shall communicate with the Secretary of Justice in order that the latter may appoint an acting prosecutor (Section 20)<br />
<br />
====Expert Witnesses====<br />
Any period of delay resulting from the absence or unavailability of an essential witness (Section 3)<br />
For purposes of this subparagraph, an essential witness shall be considered absent when his whereabouts are unknown or his whereabouts cannot be determined by due diligence. He shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence (Section 3)<br />
<br />
====Judges====<br />
Judgment is the adjudication by the court that the accused is guilty or not guilty of the offense charged and the imposition on him of the proper penalty and civil liability, if any. It must be written in the official language, personally and directly prepared by the judge and signed by him and shall contain clearly and distinctly a statement of the facts and the law upon which it is based (Rule of Criminal Procedure, Rule 120 Section 1)<br />
<br />
====Victims====<br />
Compensation to victims of violent crimes, including those unjustly accused, convicted, and imprisoned but later acquitted, as well as victims of arbitrary detention or those who have suffered serious physical or psychological injuries, permanent disability, insanity, abortion, or trauma (Victim Compensation Program Republic Act No. 7309)<br />
<br />
===Sentencing===<br />
<br />
If the judgment is of conviction, it shall state (1) the legal qualification of the offense constituted by the acts committed by the accused and the aggravating or mitigating circumstances which attended its commission; (2) the participation of the accused in the offense, whether as principal, accomplice, or accessory after the fact; (3) the penalty imposed upon the accused; and (4) the civil liability or damages caused by his wrongful act or omission to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved or waived (Rule of Criminal Procedure, Rule 120 Section 2)<br />
<br />
===Appeals===<br />
<br />
====Where====<br />
To the Regional Trial Court, in cases decided by the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court (Rule of Criminal Procedures, Rule 122 Section 2)<br />
To the Court of Appeals or to the Supreme Court in the proper cases provided by law, in cases decided by the Regional Trial Court<br />
To the Supreme Court, in cases decided by the Court of Appeals<br />
<br />
====When====<br />
An appeal must be taken within fifteen (15) days from promulgation of the judgment or from notice of the final order appealed from. This period for perfecting an appeal shall be suspended from the time a motion for new trial or reconsideration is filed until notice of the order overruling the motion shall have been served upon the accused or his counsel at which time the balance of the period begins to run (Rule of Criminal Procedures, Rule 122 Section 6)<br />
<br />
====Withdrawal====<br />
Notwithstanding the perfection of the appeal, the Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court, as the case may be, may allow the appellant to withdraw his appeal before the record has been forwarded by the clerk of court to the proper appellate court as provided in section 8, in which case the judgment shall become final (Rule of Criminal Procedures, Rule 122 Section 12)<br />
<br />
====Counsel====<br />
Appointment of counsel de oficio for accused on appeal. It shall be the duty of the clerk of the trial court, upon filing of a notice of appeal, to ascertain from the appellant, if confined in prison, whether he desires the Regional Trial Court, Court of Appeals or the Supreme Court to appoint a counsel de oficio to defend him and to transmit with the record on a form to be prepared by the clerk of court of the appellate court, a certificate of compliance with this duty and of the response of the appellant to his inquiry (Rule of Criminal Procedures, Rule 122 Section 13)<br />
<br />
==Rights in prison==<br />
<br />
====Right to Humane Conditions of Confinement====<br />
You have the right to be treated as a human being and not to be subjected to corporal punishment. You have the responsibility to allow your fellow inmates, visitors and staff enjoy the same rights (BJMP Region 5)<br />
<br />
====Immigrant's Rights in Detention====<br />
You have the right to communicate with your embassy or consulate if you are a foreigner. You have the responsibility to keep jail management informed of your transactions (BJMP Region 5)<br />
<br />
====Right to Medical Care in Prison====<br />
You have the right to avail of medical, dental and other health services readily available in the place you are detained. You have the responsibility to inform and advise us of your health problems and to follow the prescribed treatment (BJMP Region 5)<br />
<br />
====Right to Mental Health Care====<br />
You have the right to avail of medical, dental and other health services readily available in the place you are detained. You have the responsibility to inform and advise us of your health problems and to follow the prescribed treatment (BJMP Region 5)<br />
<br />
====Rights of Special Populations====<br />
=====Women=====<br />
Women in prison face significant challenges due to a lack of gender-specific policies and inadequate support systems, leading to potential violations of their human rights. There is a recognized need for gender-sensitive healthcare, especially in areas of reproductive health, and for addressing the specific needs of survivors of gender-based violence (UN Women)<br />
<br />
=====GLBT Prisoners=====<br />
No specific legislation<br />
<br />
=====Mentally Ill Prisoners=====<br />
Prisoners with mental health conditions have rights under the Mental Health Act, including the right to freedom from discrimination, protection from cruel and unusual treatment, and access to appropriate treatment and aftercare. Individuals with mental health conditions should not be detained in prisons if their condition requires specialized care and treatment in mental health facilities. (Republic Act 11036)<br />
<br />
=====Juveniles=====<br />
Covers the different stages involving children at risk and children in conflict with the law from prevention to rehabilitation and reintegration (Juvenile Justice and Welfare Act of 2006)<br />
<br />
==References==<br />
"The 1987 Constitution of the Republic of the Philippines". Arellano Law Foundation. Retrieved 21 July 2025, from https://lawphil.net/consti/cons1987.html<br />
<br />
"Act No. 3815, s. 1930 (The Revised Penal Code)". United Nations. Retrieved 21 July 2025, from https://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/PHL%20revised%20penal%20code.pdf<br />
<br />
"The 2000 Rules of Criminal Procedure, as amended". Arellano Law Foundation. Retrieved 21 July 2025, from https://lawphil.net/courts/supreme/rc/rc_110-127_2000.html<br />
<br />
"Republic Act No. 7309". Supreme Court E-Library. Retrieved 21 July 2025, from https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/2/3205<br />
<br />
"Inmate's Orientation Sheet". Bureau of Jail Management and Penology (BJMP) Region 5. Retrieved 21 July 2025, from https://r5.bjmp.gov.ph/wp-content/uploads/2022/01/Inmate_Orienation%20Sheet.pdf<br />
<br />
"Promoting women’s access to justice in the Philippines". UN Women Asia and the Pacific. Retrieved 21 July 2025, from https://asiapacific.unwomen.org/en/focus-areas/governance/womens-access-to-justice/projects/a2j-women-in-conflict-with-the-law<br />
<br />
"Republic Act No. 9344". Arellano Law Foundation. Retrieved 21 July 2025, from https://lawphil.net/statutes/repacts/ra2006/ra_9344_2006.html<br />
<br />
"P.S. Res. No. 253". Senate of the Philippines. Retrieved 21 July 2025, from https://web.senate.gov.ph/lisdata/56574980!.pdf<br />
<br />
"The Right to an Interpreter for Deaf, Hard of Hearing, and Deaf-Blind Defendants". Columbia Human Rights Law Review. Retrieved 21 July 2025, from https://hrlr.law.columbia.edu/files/2018/01/JuliaShermanTheRighttoanl.pdf<br />
<br />
"2000 Rules of Criminal Procedure". Senate Electoral Tribunal. Retrieved 21 July 2025, from https://www.set.gov.ph/resources/revised-rules-of-court/2000-rules-of-criminal-procedure/<br />
<br />
"Services". Public Attorney's Office. Retrieved 21 July 2025, from https://pao.gov.ph/services-2/<br />
<br />
"A rock and a hard place: Challenges of free legal aid in the Philippines". Thomson Reuters Foundation. Retrieved 21 July 2025, from https://www.trust.org/impact-story/a-rock-and-a-hard-place-challenges-of-free-legal-aid-in-the-philippines/<br />
<br />
"Free Legal Assistance Group". Wikipedia. Retrieved 21 July 2025, from https://en.wikipedia.org/wiki/Free_Legal_Assistance_Group<br />
<br />
"Philippine Free Legal Advice Groups". LawyerPhilippines.org. Retrieved 21 July 2025, from https://lawyerphilippines.org/philippine-free-legal-advice-groups/<br />
<br />
"Setting the bar high". Daily Tribune. 17 September 2023. Retrieved 21 July 2025, from https://tribune.net.ph/2023/09/17/setting-the-bar-high</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Guyana&diff=381670Guyana2025-07-16T09:29:08Z<p>IBJadmin: </p>
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⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>.<br />
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* Constitution of the Cooperative Republic of Guyana <ref>https://www.parliament.gov.gy/Constitution%20of%20the%20Cooperatiive%20Republic%20of%20Guyana.pdf<br />
</ref><br />
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* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
Guyana is the only English-speaking country in South America and developed a new constitution in 1953. The country gained independence from Britain in 1966 and then went through a period of political instability associated with negative and challenging interpersonal relations of various identity groups, primarily between Afro-Guyanese and Indo-Guyanese communities. These relations took form in two political parties: People’s National Congress (PNC) and People’s Progressive Party (PPP) respectively. The PPP has in the past been accused of favoring the Indo-Guyanese population to the detriment and neglect of Afro-Guyanese people. There have been two notable periods of intense violence across the country as a result of political tensions (1960–1964 and 2002–2006). For many decades there have been charges of voter fraud in presidential elections regardless of which political party holds office.<br><br />
<br />
==Legal system==<br />
Guyana’s legal system is a combination of both Dutch and British influence, though more notably British common law practices, as a result of colonialism. The hierarchy of judges in the judicial system are the magistrate courts, Guyana’s High Court, and the Caribbean Court of Justice.<br><br />
<br />
==Legal aid==<br />
===State-sponsored legal aid===<br />
The state is responsible for making provisions for legal aid to be given to people in suitable cases according to article 144 of the Guyanese Constitution.<br><br />
===NGOs providing pro bono legal aid===<br />
The non-governmental organization Guyana Legal Aid Clinic is the only institutional provider of legal aid in Guyana. They provide subsidized and free professional assistance and legal aid to those in danger of having their rights infringed upon or other needs unmet.<br><br />
===Number of lawyers===<br />
The number of lawyers in Guyana is currently unknown.<br><br />
<br />
==Sources of defendant’s rights==<br />
===National sources of defendant’s rights===<br />
Most of the information about Guyana’s legal system can be found in the Guyanese Constitution and Laws of Guyana Criminal Law Procedure Act. The Laws of Guyana Prison Act and Summary Jurisdiction (Appeals) Act contains more specific information on prison conditions and rights of prisoners.<br><br />
===International sources of defendant’s rights===<br />
Guyana is a signatory and has included in its constitution that it seeks to uphold rights of individuals declared in the Universal Declaration of Human Rights.<br><br><br />
<br />
==Rights of the Accused==<br />
<br />
===Right Against Unlawful Arrests, Searches and Seizures===<br />
Article 199 of the Criminal Law Procedure states that any person found committing any indictable offense may be apprehended by anyone without warrant, and anyone may, without warrant, arrest the person if that offense has actually been committed, or if the person arrested is being pursued by hue and cry. Article 143 of the Guyanese Constitution guarantees that no person shall be subject to the search of their person or property without consent, though Article 18 of the Guyana Police Act allows searches by police under reasonable suspicion.<br><br />
<br />
===Right Not to be Tortured or Ill-Treated===<br />
Article 141 of the Guyanese Constitution guarantees that no person shall be subjected to torture or to inhuman or degrading punishment or other treatment.<br><br />
<br />
===Right to Medical Care===<br />
Article 174 of the Criminal Law Procedure Act allows absence from trial on grounds of illness and for court-ordered medical examination.<br><br />
<br />
===Right to be Informed of Charges===<br />
Subsection b of Article 144 of the Constitution ensures the right to be informed of the nature of charges in a language the person understands.<br><br />
<br />
===Right to Presumption of Innocence===<br />
Subsection a of Article 144 of the Constitution guarantees presumption of innocence until proven guilty or a guilty plea is entered.<br><br />
<br />
===Right to a Present a Defense===<br />
Subsection c of Article 144 provides the accused with adequate time and facilities to prepare their defense.<br><br />
<br />
===Right to Equal Protection of the Laws===<br />
Article 149D guarantees equality before the law and equal protection and benefit of the law.<br><br />
<br />
===Right to Bail===<br />
Article 18 of the Criminal Law Procedure provides for bail based on surety or recognizance, at the discretion of a magistrate.<br><br />
<br />
===Right Against Double Jeopardy===<br />
Article 144 prohibits retrial for the same offence once a competent court has acquitted or convicted, except on appeal.<br><br />
<br />
===Right to a Fair Trial===<br />
Article 144 mandates a fair hearing within a reasonable time by an independent and impartial court.<br><br />
<br />
===Right to Language Interpretation===<br />
Article 144 also entitles accused persons to a free interpreter if they do not understand the language of the trial.<br><br />
<br />
===Right to Habeas Corpus===<br />
Article 174 ensures presence in court throughout the trial unless disruptive conduct makes it impracticable.<br><br />
<br />
===Capital Punishment===<br />
Article 138 prohibits capital punishment for persons under 18. Article 167 substitutes life imprisonment for pregnant women sentenced to death. Article 185 details execution procedures.<br><br />
<br />
===Right to Appeal===<br />
Appeal is available via the Court of Appeals as established in the Guyanese Constitution.<br><br><br />
<br />
==Rights of Counsel==<br />
<br />
===Right of Access to the Client===<br />
Article 193 of the Criminal Law Procedure grants counsel access to detained clients subject to prison regulations.<br><br />
<br />
===Right to Confidential Communication with the Client===<br />
Article 303 of the Prison Rules Act allows private communication between prisoners and legal advisers in sight but not hearing of an officer.<br><br><br />
<br />
==Means of Protecting or Enforcing Rights==<br />
<br />
===Motions===<br />
Article 161 of the Criminal Law Procedure mandates that following a guilty verdict or plea, the registrar must ask for any reason sentence should not be passed, though omission doesn’t invalidate proceedings.<br><br />
<br />
===Contempt===<br />
Article 139 provides that deprivation of liberty must be lawful and includes punishment for contempt of court.<br><br><br />
<br />
==Pre-trial Procedures==<br />
<br />
===Police procedures===<br />
====Complaint/information====<br />
Article 51 authorizes a magistrate to issue a summons or warrant upon a complaint or information of an indictable offence if deemed justified.<br><br />
<br />
====Arrest, Search and Seizure Laws====<br />
See Rights of the Accused section above.<br><br />
<br />
====Pre-trial detention====<br />
Article 151 of the Constitution limits detention without trial to three months.<br><br><br />
<br />
==Court Procedures==<br />
<br />
===Pre-Trial===<br />
Article 62 of the Criminal Law Procedure allows magistrates to manage preliminary inquiries with discretion to allow or deny prosecutor arguments, receive further evidence, adjourn and change venues, and remand the accused.<br><br />
<br />
===Discovery===<br />
Article 65 requires magistrates to record witness testimony in the presence of the accused, allow cross-examination, and ensure the deposition is signed in a joint session.<br><br />
<br />
===Trial===<br />
Article 91 states trials shall be on indictment in court. Article 92 allows motion for trial at bar with multiple judges and a jury. Representation by counsel is affirmed.<br><br />
<br />
===Sentencing===<br />
Article 161 again mandates asking for mitigating statements post-verdict. Article 181–183 govern execution and consequences of non-capital sentences, including effect akin to a pardon for served sentences.<br><br />
<br />
===Appeals===<br />
Article 3 of the Summary Jurisdiction (Appeals) Act allows appeals from magistrates to the Court, including for indictable offences handled summarily.<br><br><br />
<br />
==Rights in Prison==<br />
<br />
===Right to Humane Conditions of Confinement===<br />
Articles 281–292 of the Prison Act ensure educational opportunities, access to libraries, communication with families, and regulated visitation rights.<br><br />
<br />
===Right to Medical Care in Prison===<br />
Article 239 requires a medical examination within 24 hours of prison admission.<br><br />
<br />
===Right to Mental Health Care===<br />
Article 45 emphasizes the importance of improving prisoners’ mental and physical abilities.<br><br />
<br />
===Rights of Special Populations===<br />
====Women====<br />
Articles 98 and 102 require daily inspection of female prisoner areas by a Woman Principal Officer and limit male access.<br />
<br />
====Mentally Ill Prisoners====<br />
Article 24 allows transfer to a mental hospital based on certification by a government medical officer.<br />
<br />
====Juveniles====<br />
Articles 31, 220, and 221 provide for transfer to approved schools and classification into Young Prisoners’ Class, with provisions for reassignment.<br><br><br />
<br />
==Sources==<br />
- Constitution of the Cooperative Republic of Guyana. Laws of Guyana. 2012. http://old.parliament.gov.gy/constitution.pdf <br><br />
- Criminal Law (Procedure). Laws of Guyana. 1998. https://moha.gov.gy/Criminal-Law-Procedure.pdf <br><br />
- Prison Act. Laws of Guyana 2012. https://mola.gov.gy.pdf <br><br />
- Police Act. Laws of Guyana. 1998. https://humanrightsinitiative.orgpoliceact.pdf <br><br />
- Summary Jurisdiction (Appeals) Act. Laws of Guyana. 1998. https://mola.gov.gy/laws.pdf <br></div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Iran&diff=381669Iran2025-07-16T09:15:34Z<p>IBJadmin: Fixed bullet points</p>
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⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>.<br />
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* Constitution of the Islamic Republic of Iran <ref>https://web.archive.org/web/20161027004409/https://en.parliran.ir/eng/en/Constitution</ref><br />
<br />
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<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
<br />
==Background==<br />
<br />
Iran executed at least 975 people in 2024, the highest number since 2015, with serious due process violations including lack of access to lawyers. The key challenge remains that Iran is intensifying its crackdown on human rights lawyers, targeting those who defend protesters and dissidents. <br />
<br />
<br><br />
<br />
==The Legal system==<br />
<br />
Iran operates under a hybrid system combining Islamic law (Sharia) with civil law traditions, heavily influenced by the 1979 Islamic Revolution<br />
<br />
In accordance with the Islamic Penal Code, any act or failure to act for which a punishment has been designated in the laws is a crime. Also, according to Article 2 of the Code of Criminal Procedure, all crimes have a divine aspect. All individuals who have reached the age of maturity designated in Sharia law have complete criminal responsibility and in the case of commission of a crime, will be pursued and punished accordingly. Boys are deemed mature by 15 lunar years and girls 9 lunar years. If a mature person commits a crime, they will be tried based on the Code of Criminal Procedure of the Islamic Republic of Iran. <br />
<br />
<br />
<br />
==Legal Aid==<br />
<br />
'''State-sponsored legal aid''': While the right to counsel is established, the practical availability of free or subsidized legal aid can be limited due to factors like insufficient funding, lack of awareness, and inadequate outreach efforts. <br />
<br />
'''Existing NGOs providing pro bono legal aid'''<br />
<ul><li>UNHCR Iran operates a Legal Services Project with the objective of providing legal assistance to refugees in Iran and resolving disputes through alternative dispute resolution mechanisms.<br />
<li>Iranian Bar Associations Union <br />
<li>Defenders of Human Rights Center (DHRC)<br />
<li>Islamic Human Rights Commission<br />
</li></ul><br />
<br />
'''Number of lawyers''': The Iranian Bar Association is estimated to have around 60,000 members. Detailed breakdown between criminal and civil lawyers is unknown. <br />
<br />
'''Human Rights Organizations'''<br />
<br />
Iran Human Rights (IHR): This non-profit, independent organization focuses on building a strong civil society by empowering citizens and promoting human rights as defined by the Universal Declaration of Human Rights. IHR is particularly known for its work on abolishing the death penalty in Iran and monitoring human rights abuses. <br />
<br />
Center for Human Rights in Iran (CHRI):<br />
Formerly known as the International Campaign for Human Rights in Iran, CHRI is an American non-governmental organization dedicated to promoting human rights in Iran. <br />
<br />
Defenders of Human Rights Center (DHRC):<br />
Founded in 2001, the DHRC advocates for the rights of women, political prisoners, and minorities in Iran. Its president is Nobel Peace Prize laureate Shirin Ebadi. <br />
<br />
Human Rights Activists in Iran (HRAI):<br />
This non-political and non-governmental organization aims to promote, safeguard, and sustain human rights in Iran. HRAI monitors human rights violations, disseminates information, and advocates for various human rights, including freedom of speech, association, and press. <br />
<br />
Impact Iran:<br />
A coalition of 19 non-governmental organizations, Impact Iran works to advocate for human rights and drive positive change in Iran by amplifying the voices of Iranian civil society. <br />
<br />
Ahwaz Human Rights Organization:<br />
This NGO focuses on defending the human rights of the Ahwazi Arab minority in Iran. <br />
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<br />
==Source of Defendants Rights==<br />
'''National Sources of Defendant’s Rights'''<br />
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<li>Iranian Constitution<br />
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* Article 32 states that no person may be arrested except according to and in the manner laid down in the law. If someone is detained, the subject matter of the charge, with reasons (for bringing it), must immediately be communicated and explained in writing to the accused. Within at most 24 hours the file on the case and preliminary documentation must be referred to the competent legal authority. <br />
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* Article 34 states that everyone may refer to the competent courts in search of justice. <br />
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* Article 35 of the Iranian Constitution explicitly states that both parties in a lawsuit have the right to select an attorney, and if they cannot afford one, arrangements must be made to provide legal counsel according to the Center for Human Rights in Iran. <br />
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* Article 36 says that a sentence to punishment and its execution must only be by the decision of a competent court, and by virtue of law.<br />
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* Article 37 says that innocence is the basic principle. No person is considered legally guilty, except in cases where his guilt is established in a competent court.<br />
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* Article 38 prevents use of torture to obtain information. <br />
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* Article 39 protects the arrested person’s dignity and respect.<br />
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<li>Citizenship Rights Law (2004)<br />
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<li>Islamic Penal Code (2013)<br />
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<li>Code of Criminal Procedure of Iran (1999)<br />
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'''International Sources of defendant’s rights'''<br />
<li>International Covenant on Civil and Political Rights (ICCPR). This treaty, which Iran is a party to, includes guarantees of a fair trial, freedom of expression, and freedom of association.<br />
* Article 14: Guarantees the right to a fair trial and due process of law. <br />
* Article 19: Protects freedom of expression. <br />
* Article 22: Protects freedom of association. <br />
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<li>Iran has signed but not ratified CAT (Convention Against Torture) <br />
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==Rights of the Accused==<br />
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'''Presumption of innocence:'''<br />
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Article 37 of the Iranian Constitution says that innocence is the basic principle. No person is considered legally guilty, except in cases where his guilt is established in a competent court. <br />
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'''Right to defense:'''<br />
Article 3 of the “Citizenship Rights Law” (2004) clearly required courts and prosecution offices to respect the right of the accused to a defense and to provide the accused with the services of a defense attorney. <br />
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'''Right to counsel:'''<br />
Article 35 of the Iranian Constitution explicitly states that both parties in a lawsuit have the right to select an attorney, and if they cannot afford one, arrangements must be made to provide legal counsel according to the Center for Human Rights in Iran. Article 185 of the Islamic Penal Code protects rights to an attorney. <br />
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'''Right to a fair trial:'''<br />
Article 34 Constitution states that everyone may refer to the competent courts in search of justice. <br />
Article 36 Constitution says that a sentence to punishment and its execution must only be by the decision of a competent court, and by virtue of law.<br />
Judges are appointed based on ideology rather than legal training.<br />
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'''Temporary detention (only with evidence):'''<br />
Article 5 of the “Citizenship Rights Law” (2004) forbids arbitrary detention of individuals. Officials must also provide the family of the detainee with information. <br />
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'''Confession without coercion:''' <br />
Article 37 Constitution prevents use of torture to obtain information. <br />
Article 169 Islamic Penal Code: Any confession made under duress, coercion, torture, and/or mental or physical harassment and molestation shall have no value and credit; and the court shall interrogate the accused, again. <br />
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'''Qesās (Retaliation):''' retribution where victim or family members can demand similar punishments <br />
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'''Civil rights upheld:'''<br />
Article 39 Constitution protects the arrested person’s dignity and respect.<br />
Right Against Unlawful Arrests, Searches, Seizures, and Unlawful Detention <br />
Article 32 Constitution states that no person may be arrested except according to and in the manner laid down in the law. If someone is detained, the subject matter of the charge, with reasons (for bringing it), must immediately be communicated and explained in writing to the accused. Within at most 24 hours the file on the case and preliminary documentation must be referred to the competent legal authority. <br />
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'''Right Not to be Tortured or Ill-Treated:'''<br />
Article 37 Constitution prevents use of torture to obtain information. <br />
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'''Right to Medical Care:'''<br />
Article 495 of the Iranian Penal Code states that a physician is responsible for "diyah" (blood money) if their treatment results in harm to a patient, unless the treatment was medically and technically sound and the physician was not at fault, according to the International Academic Institute for Science and Technology.<br />
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==Rights of Counsel==<br />
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'''Right to Provide Representation:''' Guaranteed by article 35 of the Constitution.<br />
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'''Right of Access to the Client:''' Investigators can block the presence of trial attorneys during interrogations, according to Article 128 of the Code of Criminal Procedure (1999). Some also use the note under this article to refuse to accept a retainer letter from an attorney.<br />
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'''Right to Information:''' Trial attorneys are at times unable to accompany their clients through the criminal investigation of their case, and also not able to read the case and prepare motions and defenses on their behalf.<br />
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'''Right to Confidential Communication with the Client:''' Investigators can refuse to accept a retainer letter from an attorney, thereby denying confidential communications.<br />
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==Means of Protecting or Enforcing Rights==<br />
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'''Exclusionary Rule:'''<br><br />
While Iran does not have explicit exclusionary rule that automatically excludes any evidence obtained illegally, there exists protection against using coercion and torture for extracting confession or information (Article 38 of Iranian Constitution).<br />
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'''Nullity of Procedure:'''<br><br />
Nullity can occur when a court's actions or decisions contravene established legal principles, such as the principle of legality (crimes and punishments must be defined by law) or the principle of due process (fair trial guarantees).<br><br />
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Failing to properly notify the accused, not allowing them to present a defense, or conducting a trial in an unconstitutional manner, can lead to nullity.<br><br />
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If the court lacks the legal authority (jurisdiction) to hear a case, any proceedings conducted by that court are null and void.<br />
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'''Contempt:'''<br><br />
In case of contempt of the court (noncompliance with the court's order), the judge may for the first time add up to a half of the period set forth in the writ to the term of the postponement or enter a conviction sentence (Article 44 of Islamic Penal Code)<br><br />
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Should a convict, whose punishment has reprieved, be in contempt of the court by not complying with the court orders, without plausible excuse, the court entering the final sentence may, at the request of the public prosecutor or sentence enforcement judge, add to the period of reprieve one to two years, for the first time, or revoke the stay of execution writ. Contempt of the court (noncompliance with the court order) for the second time will result in setting aside the stay of execution writ and enforcement of punishment (Article 50 Islamic Penal Code)<br />
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'''Civil Actions:'''<br><br />
The incarceration alternatives constitute probation period, unpaid public services, pecuniary penalty, daily pecuniary penalty and civil disability, which will be determined and enforced in case of remission by the complainant and existence of extenuating circumstances (Article 53 Islamic Penal Code)<br><br />
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There shall be no civil liability in the instances where perpetration of felony is not attributed to the action of any person, such as when it occurs out of natural disaster causes (Article 500 Islamic Penal Code)<br />
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==Pre-trial Procedures==<br />
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'''Initiation of proceedings:'''<br><br />
Cases can be initiated through prosecutorial or investigatory action by judicial authorities in performing legal duties such as summoning, arresting, interrogating.<br><br />
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Complaints for certain forgettable ta'zir offenses must be made within one year from when the victim becomes aware of the offense.<br />
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'''Arrest, Search and Seizure Laws:'''<br><br />
Limited information on stop-and-frisk<br><br />
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Arrests can only be made with warrants. Detaining individuals without proper authority can mean 1-3 years imprisonment or fines.<br><br />
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Pre-trial detention is counted towards the sentence. There are cases marked by allegations of torture and due process violations, and lack of access to lawyer.<br><br />
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Procurators may supervise private bank accounts with approval of the head of the judicial district (lowered from provincial approval requirements). Once imprisoned, inmates are thoroughly searched, particularly for drugs, with body scanners and strip searches conducted.<br><br />
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No specific lineup procedures.<br />
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'''Interrogation:'''<br><br />
Prosecution or interrogation action is a measure taken by judicial authorities in carrying out a legally provided function such as summoning, arresting, interrogating, hearing witnesses and informants statements, making offense scene investigations or inspection and letters rogatory (Article 105 Islamic Penal Code).<br><br />
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Generally conducted under the supervision of a prosecutor and other judicial authority.<br><br />
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Investigators can gather evidence, question witnesses, and take other actions to uncover a crime. No torture allowed.<br><br><br />
During interrogation, accused have the right to silence and have an advocate.<br />
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==Court Procedures==<br />
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'''Pre-trial: Preliminary investigation:'''<br><br />
“Preliminary investigation” is the collection of investigative actions taken for the purpose of discovery of the crime, preserving the evidence of the commission of crime, as well as pursuing the accused from the issuance of the warrant order until his submission to judicial officials. These are usually confidential and in writing. This process aims to collect the reasons and documents of the crime, prevent the flight or conspiring of the accused and the issuance of a preliminary judicial opinion on the guilt or innocence of the accused. (Article 19 of Code of Criminal Procedure)<br><br />
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The case investigator can only start a “preliminary investigation” for collecting evidence of a crime and issuing a judicial opinion if he is given permission to do so. (conditions outlined in section d, article 3 of the Law of Formation of the General and Revolutionary Courts)<br><br />
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The formal charges would create cases, which proceed through prosecution court. Murder and rape charges tried by Criminal Courts, while security-related charges, corruption, and drug trafficking processed by Revolutionary Courts.<br><br />
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Prosecution court issues summons to defendant explaining charges and attendance date/time, usually followed by "temporary arrest" proceedings<br />
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'''Temporary detention:'''<br><br />
Usually, the accused is summoned or placed in detention. However, they do have specific rights that security officers must respect.<br><br />
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Arbitrary detention of individuals is forbidden, according to article 5 of the citizenship law passed in May of 2004. Officials must also provide the family of the detainee with information. If the accused is not arrested by the order and demand of a judicial official, they cannot be kept in prison for more than 24 hours without an investigation order being issued (Article 123 of the Criminal Code of Procedure). Temporary detention orders can only be issued for specific cases including murder, kidnapping, spilling acid on someone, or possibility of feeling (Articles 35 and 132 of Iranian Criminal Code of Procedure). If issued, they cannot be held for more than two months based on the majority of charges and four months for very specific charges (Article 3 of law of the Formation of the Public and Revolutionary Courts). In political/press related charges, the investigator on the case has the authority to keep the accused in the detention center of the Ministry of Intelligence for up to four months (Article 20 of the Law of the Formation of the Public and Revolutionary Courts).<br />
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'''Interrogation:'''<br><br />
The nature of their crime and connection with international human rights organizations can influence the interrogation team’s behavior.<br><br />
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Cases of solitary confinement, lack of access to hygienic services, use of blindfolds, inappropriate behavior of interrogation teams, bans on fresh air, and refusal to allow phone conversations reflect the use of psychological torture in Iranian prisons.<br />
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==Trial==<br />
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'''Nature of the Trial:'''<br><br />
All cases are tried in a specific court depending on the nature of the accusation, the location of the commission of the alleged crime, and the characteristics of the accused.<br><br />
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Article 168 of the Iranian constitution states that political crimes must be tried in an “open” and “public court” in the presence of a “jury.” Authorities can use the absence of “political crime” as an excuse to deny defendants of a public trial.<br><br />
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Article 5 of the Law of Formation of Public and Revolutionary courts says that political prisoners are tried in “revolutionary court” without jury. Court sessions typically last a few minutes long. Heads ask questions about name, personal identification, and statement of charges as formalities.<br><br><br />
'''Defendant:'''<br><br />
Protected if a defense attorney is present.<br><br><br />
'''Lawyers:'''<br><br />
At the court's beginning, the prosecutor representative must read the indictment of the accused and defend its content. In political/press related cases, a representative of the prosecutor is usually an intelligence employee of the revolutionary prosecution office who may have played a role in the interrogation of the accused during the preliminary investigation.<br><br />
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Defense attorneys can defend their clients both verbally and in writing.<br><br><br />
'''Expert Witnesses:'''<br><br />
Where a witness does not have the requisite conditions prescribed by the divine law, her/his statements will be heard. It is for the court to determine the extent of effect and value of those statements as judicial presumption on the judge’s knowledge of facts (Article 176 of Islamic Penal Code)<br><br />
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Under divine law, a witness must have the following conditions (Article 177 Constitution):<br><br />
* Maturity; <br />
* Sanity; <br />
* Faithfulness; <br />
* Virtuousness; <br />
* Legitimacy by birth; <br />
* Lack of interest in the subject matter of testimony; <br />
* Lack of hostility against the parties or either party; <br />
* Non-engagement in beggary; <br />
* Not being a vagabond.<br><br />
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Where a witness was a discerning minor when witnessing the facts subject matter of testimony, but reaches the full age at the time of giving evidence, her/his testimony shall be valid (Article 179)<br><br />
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Contradictory witness testimony will be considered invalid (Article 182)<br><br />
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If witness cannot be present in person, evidence shall be valid in writing, live audio-video and/or recorded forms, upon establishing that the requisites are met, and that the attribution is verified (Article 186)<br><br />
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Challenge of a witness constitutes asseveration regarding lack of one of the qualification requisites prescribed by the divine law for a witness; and verification means giving evidence confirming that the qualification requisites laid down by the divine law for a witness are met (Article 191).<br><br><br />
'''Judges:'''<br><br />
Court verdict must be well-founded and documented. The judge must mention both the basis of his reasoning as well as the legal scripture and articles on which his sentence is based when issuing his opinion (Article 166 of the Constitution and Article 9 of the Law of Formation of the Public and Revolutionary Court).<br><br><br />
'''Victims:'''<br><br />
Where there is a number of victims of an offense, prosecution will commence upon lodging a complaint by each of them, but abatement of prosecution and proceeding, and reprieve of execution of punishment shall be subject to remission by all complainants (Article 102 Islamic Penal Code)<br><br />
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Should the victim of the offense fail to complain within the period of one year from the date he or she became aware of perpetration of the offense, he or she will lose the right to lodge a criminal complaint (Article 102 Islamic Penal Code)<br><br><br />
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Victims have the following rights within the criminal justice system:<br><br />
<li>May submit certified copies or images of evidence to the prosecutor to be included in the case file.<br><br />
<li>Can file civil claims for damages in court before trial concludes.<br><br />
<li>To be heard and participate in judicial proceedings, though no control over the outcome of the case.<br><br />
<li>Seek compensation, influence the prosecution of the offender.<br><br />
<li>Seek solutions that are more restorative than retaliatory.<br><br><br />
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==Sentencing==<br />
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The report is signed by the accused and attorney at the end of the court session. The judge must issue a verdict within a week’s time (Article 17 of the Law of Formation of Public and Revolutionary Courts).<br><br />
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In practice, suspending the investigation of political/press related cases is a matter of security in the hands of the administration. It can put the individual in a passive position, unable to take decisive actions.<br><br />
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A court verdict must be officially handed down to the accused and/or his attorneys. The handing down of the verdict is an important matter, because it determines the limited period for appealing the verdict.<br><br />
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Exception: for political/press related cases, a verdict is not handed down because authorities fear anti-human rights retribution.<br />
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==Appeals:==<br />
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The intention of the accused in requesting an appeal of his sentence stems from his belief that the initial sentence is unnecessarily high. However, in the framework of the Iranian criminal system, appealing an initial sentence may potentially increase its length. According to Shi’a jurisprudence governing Iran’s criminal justice system, if the first verdict is not in accordance with the teachings of Sharia law, a harsher punishment may be issued by the appeal court.<br><br />
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If an individual wants to appeal their temporary detention status, they must submit the request to the Court of Appeal of that province within 10 days. If the court finds the objection valid, it will cancel the decision for temporary detention. (Article 33 of Criminal Procedure Code).<br><br />
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The deadline for requesting an appeal for people residing in Iran is 20 days, and for people residing out of the country, they have 2 months after the date of notification or the running of the time in which s/he can appeal (Article 236 of Criminal Procedure Code).<br><br />
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Appellate courts generally summon the accused to a hearing before issuing a decision.<br><br><br />
'''Reasons for appeal (Article 240 of Criminal Procedure Code):'''<br><br />
<li>Claiming that the documents referred to by the court were invalid, or the lack of legality in the testimonies of the witnesses, or there were false statements made by the witnesses.<br><br />
<li>Claiming that the sentence is against the law.<br><br />
<li>Claiming that the judge did not pay attention to the expressed reasons.<br><br />
<li>Claiming the judge or issuing court is incompetent<br><br><br />
'''Right to Counsel:'''<br><br />
Guaranteed by Iranian Constitution<br><br />
<br />
Under new Criminal Procedure Code, lawyers must be pre-approved by the Head of the Judiciary for security related cases<br><br><br />
'''Ineffective Assistance of Counsel:'''<br><br />
Restrictions surrounding the security cases prevent lawyers from accessing case files and the accused during investigation. This can last for weeks or even months. There are also cases where lawyers are denied attendance at the hearing session, and prosecuted for taking on politically sensitive cases.<br><br />
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Lawyers lack independence, since the judiciary system can label some as more trustworthy than others for security cases.<br><br><br />
'''Other Grounds for Appeal:'''<br><br />
The sentences issued by Public and Revolutionary Courts on Criminal Affairs are definite and can be appealed only in the following cases:<br><br />
<li>Crimes for which the legal punishment is execution or stoning.<br><br />
<li>Crimes subject to a fixed penalty or retribution and similar instances.<br><br />
<li>Confiscation of properties valued more than Rials 1,000,000 (about US$ 1,000).<br><br />
<li>Crimes for which the sentence is to pay blood money in an amount more than one fifth of complete blood money.<br><br />
<li>Crimes for which the maximum legal punishment is more than three months, imprisonment or whipping or fines more than Rials 500,000 (about US$ 500).<br><br />
<li>Sentences of dismissal from service.<br><br><br />
'''Collateral Remedies (Habeas etc…):'''<br><br />
The government has an obligation to compensate the defendant for damages and offset the losses of innocent accused. However, there is a lack of compensation for unjustified detention (Penal Code of 2014).<br />
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==Rights in Prison==<br />
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'''Right to Humane Conditions of Confinement:'''<br><br />
Basic necessities outlined in the Constitution for all citizens include: housing, food, clothing, hygiene, medical treatment, education, and the necessary facilities for the establishment of a family.<br />
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'''Immigrant’s Rights in Detention:'''<br><br />
Studies show that immigrant defendants living in Iran, including Afghans, Pakistanis, Indians, Arabs and Tanzanians, experience significant obstacles in the criminal process. There is a lack of laws and provisions assigned for immigrants in different stages of proceedings.<br />
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'''Right to Medical Care in Prison:'''<br><br />
The judge may consider the defendant’s medical services to suspend performance of public service temporarily, or propose an alternative punishment to the sentence issued in court (Islamic Penal Code Article 84).<br><br />
If a physician causes death/body injury while treating the defendant, they would be liable to pay wergild (Islamic Penal Code Article 495).<br><br />
Amnesty International issued a report documenting the denial of medical care in Iran’s prisons. The report details denial of specialized medical care outside prison, intentional interruption or discontinuation of treatments, denial of release on medical grounds, withholding medication, and gender-specific abuses.<br />
<br><br><br />
'''Right to Mental Health Care:'''<br><br />
At present, Iran has no laws that specifically address mental health. However, the civil law, the Islamic penal code, a jurisdiction act, a set of safeguarding measures from 1960, family protection law and a law permitting payment of wages to psychiatric patients do help to protect different aspects of the rights of psychiatric patients.<br />
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'''Rights of Special Populations:'''<br><br />
<li>'''LGBTQ Prisoners'''<br><br />
* Iran Human Rights considers the Islamic Penal Code to be the main cause of violence against the LGBT community because it sets flogging and the death penalty for homosexual relations. Fixed punishment is set for sodomy, where the “active” party will be sentenced to death if they used force or rape. The “passive” party will be sentenced to death regardless of marital status (Article 234 Islamic Penal Code)<br><br />
<li>'''Mentally Ill Prisoners'''<br><br />
* Where at the time of committing an offense the perpetrator suffered from mental disorder in such manner that he or she lacked the volition and power of discernment, he or she will be deemed insane, and shall have no criminal liability (Islamic Penal Code Article 149)<br><br />
<li>'''Juveniles'''<br><br />
* If the minor commits the offense at age 9-15 years, the court will make one of the decisions:<br><br />
** Hand over to the parents or guardians and asking them to chastise/train the minor to adopt good conduct<br><br />
* If the minor was of age 15-18, the following punishments will be executed:<br><br />
**Detention in the reformatory for the period of two to five years in respect of the offenses the statutorily prescribed punishments of which are the first to the fifth degree discretionary punishments<br><br />
**Detention in the reformatory for the period of one to three year(s) in respect of the offenses the statutorily prescribed punishment of which is the fourth degree discretionary punishment<br><br />
**Detention in the reformatory for the period of three months to one year, or pecuniary penalty from ten million (10,000,000) Rials to forty million (40,000,000) Rials, or performance of one hundred and eighty to seven hundred and twenty hours of unpaid public services in respect of the offenses the statutorily prescribed punishments of which is the fifth degree discretionary punishment<br><br />
**Payment of pecuniary penalty from one million (1,000,000) Rials to ten million (10,000,000) Rials, or performance of sixty to one hundred and eighty hours of unpaid public services in respect of the offenses the statutorily prescribed punishments of which is the sixth degree discretionary punishment<br><br />
**Payment of pecuniary penalty up to one million (1,000,000) Rials in respect of the offenses the statutorily prescribed punishments of which are the seventh degree and eighth degree discretionary punishments.<br><br />
*Criminal convictions of minors and juveniles create no criminal records (Article 95 Islamic Penal Code)<br />
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==Resources==<br />
- "Law of the Formation of the Public and Revolutionary Courts", legal-tools.org (2009), https://www.legal-tools.org/doc/f9f706/pdf/<br />
<br />
- "The Islamic Penal Code of Iran", Iran Human Rights Documentation Center (2014), https://iranhrdc.org/wp-content/uploads/pdf_en/Iranian_Codes/Iran_Criminal_Code_English_143233623.pdf<br />
<br />
- "Islamic Penal Code", UNODC SHERLOC (2013), https://sherloc.unodc.org/cld/uploads/res/islamic-penal-code_html/Islamic_Penal_Code.pdf<br />
<br />
- "Administration of criminal justice in Iran", Cambridge University Press (2020), https://www.cambridge.org/core/books/abs/rule-of-law-in-the-islamic-republic-of-iran/administration-of-criminal-justice-in-iran/6E3EBEB82AEAEA21BE1A1C93E7661AA7<br />
<br />
- "Criminal Procedure Law of Iran", Iran Best Lawyer (n.d.), https://www.iranbestlawyer.com/criminal-procedure-law-of-iran/#:~:text=Article%2015,adherence%20to%20civil%20procedure%20formalities<br />
<br />
- "The Iranian Mental Health Act", US National Library of Medicine (2017), https://pmc.ncbi.nlm.nih.gov/articles/PMC5618927/<br />
<br />
- "LGBT-Phobia and the Cruelty of the Islamic Penal Code in Iran", Iran Human Rights (2022), https://iranhr.net/en/articles/4735/<br />
<br />
- "Health taken hostage: Cruel denial of medical care in Iran's prisons", Amnesty International (2016), https://www.amnesty.org/ar/wp-content/uploads/2021/05/MDE1341962016ENGLISH.pdf<br />
<br />
- "Barriers to Immigrant Defendants' Access to Justice during the Prosecution Phase in Iranian Criminal Justice System", ResearchGate (2024), https://www.researchgate.net/publication/389174119_Barriers_to_Immigrant_Defendants'_Access_to_Justice_during_the_Prosecution_Phase_in_Iranian_Criminal_Justice_System<br />
<br />
- "The Right of the Accused to Compensation in the Iranian Criminal Justice System", ResearchGate (2018), https://www.researchgate.net/publication/324730064_The_Right_of_the_Accused_to_Compensation_in_the_Iranian_Criminal_Justice_System#:~:text=In%20the%20Iranian%20criminal%20justice%20system%2C%20the%20right%20to%20compensation,will%20explain%20the%20various<br />
<br />
- "You have the right to an attorney… that we approve of: Right to Counsel under Iran’s new Criminal Procedure Code", Oxford Human Rights Hub (2015), https://ohrh.law.ox.ac.uk/you-have-the-right-to-an-attorney-that-we-approve-of-right-to-counsel-under-irans-new-criminal-procedure-code-2/<br />
<br />
- "Capital punishment in Iran", Wikipedia (2024), https://en.wikipedia.org/wiki/Capital_punishment_in_Iran<br />
<br />
- "Iran: New compulsory veiling law intensifies oppression of women and girls", Amnesty International (2024), https://www.amnesty.org/en/latest/news/2024/12/iran-new-compulsory-veiling-law-intensifies-oppression-of-women-and-girls/<br />
<br />
- "Law of the Formation of Public and Revolutionary Courts (2009)", Refworld (2013), https://www.refworld.org/docid/518a19404.html<br />
<br />
- "Codifying Repression: An Assessment of Iran's New Penal Code", Human Rights Watch (2012), https://www.hrw.org/report/2012/08/28/codifying-repression/assessment-irans-new-penal-code<br />
<br />
- "Justice for Iran", justice4iran.org (2024), https://justice4iran.org/<br />
<br />
- "Iran: New compulsory veiling law intensifies oppression of women and girls", Amnesty International (2024), https://www.amnesty.org/en/latest/news/2024/12/iran-new-compulsory-veiling-law-intensifies-oppression-of-women-and-girls/<br />
<br />
- "Islamic Penal Code", UNODC SHERLOC (2013), https://sherloc.unodc.org/cld/uploads/res/islamic-penal-code_html/Islamic_Penal_Code.pdf<br />
<br />
- "The Rule of Law in the Islamic Republic of Iran", University of Essex (2010), https://www1.essex.ac.uk/hri/documents/rule-of-law-in-iran.pdf#:~:text=The%20relevant%20treaty%20to%20which%20Iran%20is,and%20freedom%20of%20association%20under%20Article%2022.&text=This%20is%20a%20clear%20interference%20by%20the%20executive%20in%20judicial%20affairs<br />
<br />
- "Legal Support", UNHCR Iran (2024), https://www.unhcr.org/ir/legal-support<br />
<br />
- "Effectiveness of Legal Aid for Suspects or Defendants in the Iranian Criminal Justice System", International Journal of Educational and Vocational Social Science (2022), https://e-journal.citakonsultindo.or.id/index.php/IJEVSS/article/download/301/304/<br />
<br />
- "Iranian Lawyers: Judiciary’s Mandatory List of “Approved” Counsel Sets “Dangerous Precedent”", Iran Human Rights (2018), https://iranhumanrights.org/2018/03/iranian-lawyers-judiciarys-mandatory-list-of-approved-counsel-sets-dangerous-precedent/<br />
<br />
- "Effectiveness of Legal Aid for Suspects or Defendants in the Iranian Criminal Justice System", International Journal of Educational and Vocational Social Science (2022), https://e-journal.citakonsultindo.or.id/index.php/IJEVSS/article/download/301/304/#:~:text=However%2C%20the%20availability%20of%20legal%20aid%20is,support%2C%20exacerbating%20imbalances%20in%20the%20judicial%20process</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Maldives&diff=381668Maldives2025-07-16T09:14:03Z<p>IBJadmin: added sources</p>
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⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>.<br />
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• Constitution of the Republic of Maldives <ref>https://www.constituteproject.org/constitution/Maldives_2008<br />
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• [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
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<br />
==Introduction==<br />
<br />
===Quick summary of the context/recent history===<br />
<br />
Maldives, an independent island country in the north-central Indian Ocean. It consists of a chain of about 1,200 small coral islands and sandbanks (some 200 of which are inhabited), grouped in clusters, or atolls. The population of Maldives belongs almost entirely to the Maldivian ethnic group, which is the result of various peoples settling in the islands successively through the country's history. The first settlers, it is generally believed, were Tamil and Sinhalese peoples from southern India and Sri Lanka. Traders from Arab countries, Malaya, Madagascar, Indonesia, and China visited the islands through the centuries. The official language is an Indo-European language called Dhivehi (or Maldivian); Arabic, Hindi, and English are also spoken. Islam is the state religion.<br />
<br />
After the British took possession of Ceylon in 1796, the islands became a British protectorate, a status formalized in 1887. In 1932, before which time most of the administrative powers rested with sultans or sultanas, the first democratic constitution was proclaimed, the country remaining a sultanate. A republic was proclaimed in 1953, but later that year the country reverted to a sultanate.<br />
<br />
In 1965 the Maldive Islands attained full political independence from the British, and in 1968 a new republic was inaugurated and the sultanate abolished. The last British troops left on March 29, 1976, the date thereafter celebrated in the Maldives as Independence Day. Ibrahim Nasr, the country's first president, was succeeded in 1978 by Maumoon Abdul Gayoom, who was reelected to his sixth consecutive term in 2003. The Maldives became a member of the Commonwealth in 1982 (although it withdrew its membership from 2016 to 2020 amid a political spat).<br />
<br />
In the first years of the 21st century, Gayoom's government embarked on a long-term plan to modernize and democratize the Maldives, particularly its economy and political system. The plan also identified the country's legal system as inadequate. Beginning in 2003, wide-ranging reforms were instituted to improve human rights and the system of governance. A multiparty political system was created. In 2008 a new constitution was adopted that established greater governmental checks and balances, strengthened the powers of the legislature and judiciary, and allowed women to run for president. The country's first multicandidate presidential election was held in October of that year, and former political prisoner Mohamed Nasheed was elected president, thus ending Gayoom's 30 years in office.<br />
<br />
===Type of system===<br />
<br />
Maldives operates under a hybrid system with the Constitution, Islamic Law, and English Common Law.<br />
<br />
The constitution of the Maldives was adopted in 2008. The head of state and government is the president, assisted by a vice president and a cabinet. The president and vice president are directly elected by universal suffrage to a maximum of two five-year terms. The cabinet consists of the vice president, government ministers, and the attorney general. With the exception of the vice president, members of the cabinet are appointed by the president.<br />
<br />
The unicameral legislature, called the People's Majlis, meets at least three times per year. Its members are elected to five-year terms from Male island and from each of the 20 atoll groups into which the country is divided for administrative purposes. The number of representatives from each administrative division is determined on the basis of population, with a minimum of two per division. The 2008 constitution established Islam as the official state religion. Non-Muslims cannot become citizens, and the People's Majlis is prohibited from making any law that contravenes the tenets of Islam. Other governmental bodies include civil service and human rights commissions.<br />
<br />
The highest legal authority is the Supreme Court. Its judges are appointed by the president in consultation with the Judicial Service Commission, a body of 10 members appointed or elected from various branches of the government and the general public. The Judicial Service Commission independently appoints all other judges. There are no judicial term limits; the mandatory retirement age is 70. All judges must be Sunni Muslims. The Supreme Court bases decisions upon the constitution and Maldives law; in cases in which applicable law does not exist, Sharī ah (Islamic law) is considered. Other courts are the High Court and trial courts.<br />
<br />
===The legal aid situation in the country:===<br />
<br />
====State Sponsored legal aid====<br />
The Attorney General's Office provides legal aid to indigent criminal defendants, as there is a constitutional right to counsel.<br />
<br />
====Existing NGOs providing pro bono legal aid====<br />
Public Interest Law Centre (PILC)<br />
Family Legal Clinic (FLC)<br />
<br />
====Number of lawyers (criminal/civil)====<br />
Approximately 600 registered lawyers in the Maldives, but only about 300 are actively practicing. Roughly half of the practicing lawyers are government lawyers, who cannot represent private parties or defendants. This leaves an estimated 150 lawyers available for private criminal and civil cases.<br />
<br />
===Sources of defendant's rights===<br />
<br />
====National Sources of Defendant's rights====<br />
Maldives Constitution<br />
Islamic Law (Code of Sharia)<br />
Criminal Procedure Act (2016)<br />
Human Rights Commission (Constitution Article 188)<br />
<br />
==Rights of the Accused==<br />
Independent and impartial institution. It promotes respect for human rights impartially without favour and prejudice.<br />
<br />
Appointed by the president; composed of at least five members including the chairman of the commission.<br />
<br />
===Right Against Unlawful Arrests, Searches and Seizures===<br />
<br />
No person shall be subject to search or seizure unless there is reasonable cause. (Constitution Article 47)<br />
<br />
Residential property shall be inviolable, and shall not be entered without the consent of the resident, except to prevent immediate and serious harm to life or property, or under the express authorisation of an order of the Court.<br />
<br />
===Right Against Unlawful Detention===<br />
<br />
Everyone has the right not to be arbitrarily detained, arrested or imprisoned except as provided by law enacted by the People's Majlis in accordance with Article 16 of this Constitution (Constitution Article 45)<br />
<br />
Not for arrest, a person may be taken into police custody for questioning on charges of a crime. The persons so taken into custody shall be given the legal warning (Criminal Procedure Code Chapter V Article 50)<br />
<br />
===Right Not to be Tortured or III-Treated===<br />
<br />
No person shall be subjected to cruel, inhumane or degrading treatment or punishment, or to torture (Constitution Article 54)<br />
<br />
===Right to Medical Care===<br />
<br />
Everyone deprived of liberty through arrest or detention as provided by law, pursuant to an order of the court, or being held in State care for social reasons, shall be treated with humanity and with respect for the inherent dignity of the human person. A person may be deprived of the rights or freedoms specified in this Chapter only to the extent required for the purpose for which he is deprived of his liberty (Constitution Article 57)<br />
<br />
===Right to be Informed of Charges===<br />
<br />
Everyone has the right to be informed immediately of the reasons therefore, and in writing within at least twenty four hours (Constitution Article 48)<br />
<br />
Within a maximum of 12 hours, an arrested person shall be informed in writing of the arrest, the reason for his arrest, and the offense charged against him (Criminal Procedure Code Chapter V Article 43)<br />
<br />
===Right to Presumption of Innocence===<br />
<br />
Accused is to be presumed innocent until proven guilty beyond a reasonable doubt (Constitution Article 51 Section H)<br />
<br />
===Right Against Self-Incrimination===<br />
<br />
Everyone accused of a crime has the right not to make a statement against himself (Criminal Procedure Code Chapter V Article 48)<br />
<br />
Unless otherwise provided by other law, the only way to submit material evidence is to obtain a sample of his handwriting or fingerprints or extracorporeal or intracorporeal sample to link the same to the accused, whichever is sought from him Not giving means not giving a statement against oneself<br />
<br />
===Right to Counsel and Effective Assistance===<br />
<br />
Where a person is being held in custody and questioned by the police, he shall be given an opportunity to telephone his legal counsel or his relative or any other person who can protect his interests and explain his whereabouts before the questioning begins (Criminal Procedure Code Chapter V Article 46)<br />
<br />
If the person in police custody so wishes, he has the right to request that his lawyer be with him during the questioning. and, if he so requests, the police shall give him that opportunity<br />
<br />
===Right to a Present a Defense===<br />
Everyone has the right to retain legal counsel at any instance assistance is required (Constitution Article 53)<br />
<br />
In serious criminal cases, the State provides a lawyer for an accused person and instructs where legal shall provide who cannot afford to engage one<br />
<br />
===Right to Due Process===<br />
<br />
Everyone has the right to administrative action that is lawful, procedurally fair, and expeditious (Constitution Article 43)<br />
Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.<br />
<br />
===Right to Equal Protection of the Laws===<br />
<br />
The enumeration of rights and freedoms in this Chapter are guaranteed equally to female and male persons (Constitution Article 62)<br />
<br />
The enumeration of rights and freedoms individually in this Chapter shall not be construed to deny or negate other rights retained by the people which are not specified in this Chapter.<br />
<br />
===Right to Bail===<br />
<br />
A person arrested on charges of an offense prescribed by law shall have the right to apply to the court for release on bail. Under no circumstances shall a person who has been ordered to be released on bail be kept in custody (Criminal Procedure Code Chapter VII Article 61)<br />
<br />
===Right Against Double Jeopardy===<br />
<br />
If an accused is acquitted of an offence by a court, he shall not be tried again for the same or substantially the same offence. If an accused is found guilty and punished for an offence he shall not be tried or punished again for the same or substantially the same offence (Constitution Article 60)<br />
<br />
===Right to a Fair Trial (Constitution Article 42)===<br />
<br />
<li>Right to a Trial by Jury<br />
<br />
<li>Right to a Speedy Trial<br />
<br />
<li>Right to an Impartial Judge<br />
<br />
===Right to Language Interpretation===<br />
<br />
The accused has the right to an interpreter to be provided by the State where he does not speak the language in which the proceedings are conducted, or is deaf or mute (Constitution Article 51 Section D)<br />
<br />
===Right to Habeas Corpus===<br />
<br />
No person shall be arrested or detained for an offence unless the arresting officer observes the offence being committed, or has reasonable and probable grounds or evidence to believe the person has committed an offence or is about to commit an offence, or under the authority of an arrest warrant issued by the court (Constitution Articles 45/46)<br />
<br />
===Capital Punishment===<br />
<br />
The Maldives government announced on December 20, 2023, that it plans to reinstate the death penalty, ending a de facto moratorium on its use that dates back to the 1950s (Human Rights Watch)<br />
<br />
===Right to Appeal===<br />
<br />
Everyone related to a matter has the right to appeal a conviction and sentence, or judgement or order in a criminal or civil matter (Constitution Article 56)<br />
<br />
==Rights of Counsel (Constitution Article 53)==<br />
===Right to Provide Representation===<br />
Everyone has the right to retain legal counsel at any instance assistance is required (Constitution Article 53) <br />
<br />
===Right of Access to the Client===<br />
To retain and instruct legal counsel without delay and to be informed of this right, and to have access to legal counsel facilitated until the conclusion of the matter for which he is under arrest or detention (Constitution Article 48 Section B)<br />
<br />
===Right to Information===<br />
To be informed immediately of the reasons therefore (of arrest), and in writing within at least twenty four hours (Constitution Article 48 Section A) <br />
<br />
===Right to Confidential Communication with the Client===<br />
To have adequate time and facilities for the preparation of his defence and to communicate with and instruct legal counsel of his own choosing (Constitution Article 51)<br />
<br />
==Means of Protecting or Enforcing Rights==<br />
===Exclusionary Rule===<br />
<br />
In the following circumstances, the information referred to in Article 129 of this Act shall not be disclosed or given an opportunity to be examined (Criminal Procedure Code Article 130)<br />
Reports and documents prepared by a public prosecutor or agent for the sole purpose of that office or agency in connection with an investigation or prosecution of a case<br />
A statement made by a government employee or lawyer, witness or potential witness<br />
<br />
===Nullity of Procedure===<br />
<br />
A procedure is considered null and void if it deviates from legal procedures and principle. This can include judicial or legal obstacles for the judge, missing court seals or signatures, or a lack of reasoning in the decision or ruling<br />
<br />
===Contempt===<br />
<br />
The trial judge reserves the right to take action against any party who commits an act of contempt of court at any stage of an ongoing trial (Criminal Procedure Code Article 170)<br />
<br />
==Pre-trial Procedures==<br />
<br />
====Complaint/information====<br />
After notice of an alleged offence has been brought to the attention of the investigating authorities, the matter shall be investigated promptly, and where warranted, the Prosecutor General shall lay charges as quickly as possible (Constitution Article 50)<br />
<br />
====Arrest, Search and Seizure Laws====<br />
A person may be stopped and searched without a warrant only if he/she is: (Criminal Procedure Code Chapter V)<br />
<li>Found at the scene of a crime<br />
<li>Believed to be in possession of a knife/dagger<br />
<li>Believed to be in possession of drugs or alcohol<br />
<li>Believed to be in possession of stolen property or of property for which ownership cannot be proved<br />
<br><br />
<br><br />
Only persons of the same sex as the person being searched shall touch the body of the person being searched and shall be present when he is searched<br />
<br />
<br><br />
<br><br />
The police can arrest a person without a court order if:<br />
<li>There is sufficient evidence that a person has committed an offence<br />
<li>To prevent a person from committing an offence<br />
<br />
<br><br />
<br><br />
When applying for a court order to arrest a person, the police shall submit the following information to the court:<br />
<li>The offense under which law the court order is sought<br />
<li>The name and address of the person to be arrested<br />
<li>Evidence that he committed the offence<br />
<br />
<br><br />
<br><br />
While making the arrest, the police officer must:<br />
<li>Give the arrested person an introduction of himself and showing him an official document identifying him as a police officer<br />
<li>Give a copy of the court order to the arrested person<br />
<br><br />
<br><br />
When arresting and searching a person in custody, the police have the power to take and seize as evidence anything found in his hands, body or clothing relating to the offense charged against him<br />
<br />
====Interrogation====<br />
Before formal charge in court<br />
<br />
The offense involved in every criminal charge brought by the State shall be adequately investigated (Criminal Procedure Code Chapter I Article 5)<br />
<br />
After notice of an alleged offence has been brought to the attention of the investigating authorities, the matter shall be investigated promptly, and where warranted, the Prosecutor General shall lay charges as quickly as possible (Constitution Article 50)<br />
<br />
<br />
Procedures to protect against illegal interrogation<br />
<br />
No confession shall be admissible in evidence unless made in court by an accused who is in a sound state of mind. No statement or evidence must be obtained from any source by compulsion or by unlawful means and such statement or evidence is inadmissible in evidence (Constitution Article 52)<br />
<br />
==Court Procedures==<br />
===Pre-Trial===<br />
<br />
====Charging Instrument====<br />
During the investigation stage, The procedures to be followed by law enforcement agencies in filing complaints in connection with criminal offences, searching premises and property, seizing property, stopping, searching and arresting persons (Criminal Procedure Code Chapter I)<br />
<br />
====Preliminary Hearing====<br />
The court shall hold a preliminary hearing in every case brought before the court of competent jurisdiction to determine whether the charge against the person accused of the offense is clear to him, to examine his response to the charge and to determine whether there is a place to proceed (Criminal Procedure Code Chapter XII)<br />
<br />
Purpose:<br />
<li>Ensure the defendant has received copies of the claim/all documents.<br />
<br />
<li>Explain to the defendant what the charge is against him.<br />
<br />
<li>Allow them to obtain a defense counsel or spokesperson, if not yet.<br />
<br />
<li>Disclose information and documents required for the trial and determine where to proceed with prosecution.<br />
<li>Prescribe time limit for filing pre-trial motions.<br />
<li>Hold hearings on pre-trial motions and schedule date/times for hearings.<br />
<br />
<br><br />
<br><br />
Defendant answers charge by 1) confession of guilt or 2) denial of charge or 3) no appearance and deemed as pleading not guilty.<br />
<br />
<br><br />
<br><br />
Judge shall inform the defendant that they have a right to reasonable time and resources within the scope of the Criminal Procedure Act to seek acquittal, seek a lawyer, use an interpreter, not make a statement against themselves, question the witnesses produced by the prosecution, and request the court to produce witnesses of their choice.<br />
<br />
<br><br />
<br><br />
If pleaded not guilty, the prosecution shall disclose all the evidence it intends to present to prove the charge against the defendant. The defendant shall be given an opportunity to present evidence in defence, if any.<br />
Both defendant and prosecution shall be present at the hearing.<br />
<br />
====Pre-Trial Motions (Criminal Procedure Code Chapter XIV)====<br />
Motion that may be filed:<br />
<br />
A party to the case may file a defense, objection or motion with the court before the commencement of the trial that can be decided without considering the subject matter of the trial.<br />
<br />
Submitting motions:<br />
<br />
Should be filed 30 days prior to trial commencement. The judge shall decide how to hold the hearings within that period. The motion should be accompanied by supporting documents.<br />
<br />
Motion includes:<br />
<br />
Any defect in the filing of the claim and the form in which the claim is filed.<br />
<br />
A defense that may be an obstacle to prosecution; would be raised before trial.<br />
<br />
Declaring certain evidence inadmissible.<br />
<br />
====Discovery (Criminal Procedure Code Chapter 14)====<br />
The prosecution shall give the defendant the opportunity to inspect, copy and photograph the following materials upon the defendant's written request.<br />
<br />
The prosecution shall disclose information under sub-paragraphs (1) and (2) of this Article if the defendant believes that the information was obtained during an investigation or in response to a question asked by a law enforcement officer.<br />
<br />
The State shall provide the defendant with his criminal record upon written request.<br />
<br />
Upon written request by the defendant, the prosecution shall provide the results of all physical or mental or scientific tests in connection with the case if they are intended to be used in the preparation of the defendant's defense, or at trial in the prosecution's prosecution.<br />
Before the trial, the prosecution shall disclose all evidence against the defendant if requested in writing.<br />
<br />
Upon written request by the defendant, the prosecution shall provide the defendant with a list containing the names and addresses of all witnesses the prosecution intends to present.<br />
<br />
===Trial (Criminal Procedure Code Part V)===<br />
<br />
====Nature of the Trial (Criminal Procedure Code Chapter XVII)====<br />
In criminal cases, the following courts have jurisdiction: Superior, Criminal, Juvenile.<br />
=====Logistics=====<br />
If the accused has pleaded not guilty at the preliminary hearing, and is detained, their hearing would take place within 70 days.<br />
<br />
If the accused has pleaded guilty at the preliminary hearing, they will be heard by expedited trial within a maximum of 5 days.<br />
<br />
In exceptional circumstances, the accused can request an extension of the time provided for the commencement of the trial at the latest. The court has discretion to grant such extension if in the best interest of administration of justice.<br />
<br />
=====Fair and uninterrupted trial=====<br />
Every criminal case shall be tried in a fair, impartial and transparent manner.<br />
<br />
After a criminal case is charged, the case shall be tried without interruption.<br />
<br />
=====Public hearing=====<br />
All stages of the trial of criminal cases shall be conducted in public.<br />
<br />
The following circumstances allow for non-public trials:<br />
<li>Juvenile cases<br />
<li>Protect the interests of the person injured by the crime<br />
<li>Uphold moral norms of society and overall peace<br />
<li>Prevent disruption of national security<br />
<br />
====Lawyers====<br />
Prosecutor General's responsibilities/powers include:<br />
<li>Supervise the prosecution of all criminal offences in the Maldives<br />
<li>Consider/assess evidence presented by investigating bodies to determine whether charges should be pursued<br />
<li>Institute criminal proceedings against any person before any court in respect of any alleged offence<br />
<br />
====Expert Witnesses====<br />
Expert witnesses can provide specialized knowledge to the court on matters beyond the judge's typical understanding. These experts are expected to offer impartial and well-reasoned analysis based on facts and their expertise (LexisNexus)<br />
<br />
====Judges====<br />
The President as the Head of State shall appoint the Judges of the Supreme Court, after consulting the Judicial Service Commission and confirmation of the appointees by a majority of the members of the People's Majlis present and voting (Constitution Article 148)<br />
<br />
All other Judges shall be appointed by the Judicial Service Commission, to be established in accordance with the provisions of this Constitution (Constitution Article 148)<br />
<br />
A person appointed as a Judge in accordance with law, must possess the educational qualifications, experience and recognized competence necessary to discharge the duties and responsibilities of a Judge, and must be of high moral character (Constitution Article 149)<br />
<br />
====Victims====<br />
Trials will be conducted in public, except cases when the presiding judge deems it not in the best interest of victims of a crime (Constitution Article 42)<br />
<br />
===Sentencing===<br />
<br />
The application of the criminal law or criminal procedure, including the conduct of investigations, criminal proceedings and enforcement of sentences as provided by law, shall extend to the accused person only and shall not affect the legal rights or obligations of any other person (Constitution Article 44)<br />
<br />
===Appeals===<br />
<br />
====Appeals Process====<br />
The High Court and the Supreme Court have jurisdiction to hear criminal cases on appeal (Criminal Procedure Code Chapter I Article 6) <br />
<br />
====Right to Counsel====<br />
<br />
"Appeal" means an appeal by a party to the case to the High Court of a judgment of a criminal prosecution by a court of competent jurisdiction finding the accused guilty or not guilty of the offense stated in the prosecution. or the judgment of the High Court on appeal against the judgment of the lower court, to be appealed by that party to the Supreme Court (Criminal Procedure Code Chapter I Article 13)<br />
<br />
====Collateral Remedies====<br />
Everyone who has been arrested or detained without legal authority or justification has the right to be compensated (Constitution Article 58)<br />
<br />
==Rights in prison==<br />
<br />
====Right to Humane Conditions of Confinement====<br />
Everyone deprived of liberty through arrest or detention as provided by law, pursuant to an order of the court, or being held in State care for social reasons, shall be treated with humanity and with respect for the inherent dignity of the human person. A person may be deprived of the rights or freedoms specified in this Chapter only to the extent required for the purpose for which he is deprived of his liberty (Constitution Article 57)<br />
<br />
====Immigrant's Rights in Detention====<br />
May be tried with the assistance of an interpreter, fi they do not speak Dhvehi (Article 167 Criminal Procedure Act)<br />
<br />
====Right to Medical Care in Prison====<br />
Prisoners are entitled to free medical care, including initial health screenings, general check-ups, specialist consultations, and treatment both within the prison and, if needed, outside the prison.<br />
Support for mental health conditions included.<br />
<br />
====Restriction of rights====<br />
The enumeration of rights and freedoms in this Chapter are guaranteed equally to female and male persons (Constitution Article 62)<br />
The enumeration of rights and freedoms individually in this Chapter shall not be construed to deny or negate other rights retained by the people which are not specified in this Chapter.<br />
<br />
====Rights of Special Populations====<br />
Everyone is entitled to the rights and freedoms included in this Chapter without discrimination of any kind, including race, national origin, colour, sex, age, mental or physical disability, political or other opinion, property, birth or other status, or native island (Constitution Article 17)<br />
<br />
Special assistance or protection to disadvantaged individuals or groups, or to groups requiring special social assistance, as provided in law shall not be deemed to be discrimination (Constitution Article 17)<br />
=====LGBT Prisoners=====<br />
Same-sex sexual activity is criminalized, with potential penalties including imprisonment and lashings. The legal framework, influenced by Sharia law, makes LGBTQ+ individuals targets for discrimination, hate crimes, and other human rights violations.<br />
<br />
=====Mentally Ill Prisoners=====<br />
Individuals with mental illness have the right to healthcare, including support for their condition<br />
<br />
=====Juveniles=====<br />
Protected under the Juvenile Justice Act, a dedicated system that encourages them to desist from crime, operates in a child-friendly environment, and provides them with the necessary rehabilitative treatment to enable them to return to society for good and play constructive roles. The Act prescribes the rules to be established for the establishment of a juvenile justice system.<br />
<br />
==References==<br />
"Indian Ocean". Encyclopædia Britannica. Retrieved 16 July 2025, from https://www.britannica.com/place/Indian-Ocean<br />
<br />
"Criminal Procedure Act (Consolidation 1272)". Attorney General's Office, Maldives. Retrieved 16 July 2025, from https://mvlaw.gov.mv/dv/legislations/128/consolidations/1272<br />
<br />
"Constitution of the Maldives (Consolidation 977)". Attorney General's Office, Maldives. Retrieved 16 July 2025, from https://mvlaw.gov.mv/dv/legislations/140/consolidations/977<br />
<br />
"Healthcare". Maldives Correctional Service. 21 September 2017. Retrieved 16 July 2025, from https://en.corrections.gov.mv/2017/09/21/healthcare/<br />
<br />
"Instructing experts in criminal proceedings". LexisNexis. Retrieved 16 July 2025, from https://www.lexisnexis.co.uk/legal/guidance/instructing-experts-in-criminal-proceedings<br />
<br />
"Maldives: Reverse Plans to Reinstate Death Penalty". Human Rights Watch. 21 December 2023. Retrieved 16 July 2025, from https://www.hrw.org/news/2023/12/21/maldives-reverse-plans-reinstate-death-penalty<br />
<br />
"Maldives Country Profile". Federal Judicial Center. Retrieved 16 July 2025, from https://judiciariesworldwide.fjc.gov/country-profile/maldives<br />
<br />
"Legal Aid Options in the Maldives" (PDF). United Nations Development Programme. Retrieved 16 July 2025, from https://www.undp.org/sites/g/files/zskgke326/files/migration/mv/Final_word_doc-Legal-Aid-Options-in-the-Maldives.pdf<br />
<br />
"Maldives's Constitution of 2008". Constitute Project. Retrieved 16 July 2025, from https://www.constituteproject.org/constitution/Maldives_2008</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Guyana&diff=381667Guyana2025-07-16T09:10:56Z<p>IBJadmin: Created page with " {{Languages|English}} <div class="box" style="padding: 40px; font-size: 1.5em; font-family: Arial, sans-serif; line-height: 1.5; border: 3px solid yellow; background-color: #FFFF00; text-align: center; margin: 30px;"> ⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>. </div> {|..."</p>
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* Constitution of the Cooperative Republic of Guyana <ref>https://www.parliament.gov.gy/Constitution%20of%20the%20Cooperatiive%20Republic%20of%20Guyana.pdf<br />
</ref><br />
<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources </h2> <br />
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* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
===Quick summary of the context/recent history===<br />
Guyana is the only English-speaking country in South America and developed a new constitution in 1953. The country gained independence from Britain in 1966 and then went through a period of political instability associated with negative and challenging interpersonal relations of various identity groups, primarily between Afro-Guyanese and Indo-Guyanese communities. These relations took form in two political parties: People’s National Congress (PNC) and People’s Progressive Party (PPP) respectively. The PPP has in the past been accused of favoring the Indo-Guyanese population to the detriment and neglect of Afro-Guyanese people. There have been two notable periods of intense violence across the country as a result of political tensions (1960–1964 and 2002–2006). For many decades there have been charges of voter fraud in presidential elections regardless of which political party holds office.<br><br />
<br />
===Type of system (common law; civil law; hybrid)===<br />
Guyana’s legal system is a combination of both Dutch and British influence, though more notably British common law practices, as a result of colonialism. The hierarchy of judges in the judicial system are the magistrate courts, Guyana’s High Court, and the Caribbean Court of Justice.<br><br />
<br />
===The legal aid situation in the country===<br />
====State Sponsored legal aid====<br />
The state is responsible for making provisions for legal aid to be given to people in suitable cases according to article 144 of the Guyanese Constitution.<br><br />
====If no State Sponsored Legal aid exist, mention existing NGOs providing pro bono legal aid====<br />
The non-governmental organization Guyana Legal Aid Clinic is the only institutional provider of legal aid in Guyana. They provide subsidized and free professional assistance and legal aid to those in danger of having their rights infringed upon or other needs unmet.<br><br />
====Number of lawyers (criminal/civil) if known====<br />
The number of lawyers in Guyana is currently unknown.<br><br />
<br />
===Sources of defendant’s rights===<br />
====National Sources of Defendant’s rights====<br />
Most of the information about Guyana’s legal system can be found in the Guyanese Constitution and Laws of Guyana Criminal Law Procedure Act. The Laws of Guyana Prison Act and Summary Jurisdiction (Appeals) Act contains more specific information on prison conditions and rights of prisoners.<br><br />
====International Sources of defendant’s rights====<br />
Guyana is a signatory and has included in its constitution that it seeks to uphold rights of individuals declared in the Universal Declaration of Human Rights.<br><br><br />
<br />
===Rights of the Accused===<br />
<br />
====Right Against Unlawful Arrests, Searches and Seizures====<br />
Article 199 of the Criminal Law Procedure states that any person found committing any indictable offence may be apprehended by anyone without warrant, and anyone may, without warrant, arrest the person if that offence has actually been committed, or if the person arrested is being pursued by hue and cry. Article 143 of the Guyanese Constitution guarantees that no person shall be subject to the search of their person or property without consent, though Article 18 of the Guyana Police Act allows searches by police under reasonable suspicion.<br><br />
<br />
====Right Not to be Tortured or Ill-Treated====<br />
Article 141 of the Guyanese Constitution guarantees that no person shall be subjected to torture or to inhuman or degrading punishment or other treatment.<br><br />
<br />
====Right to Medical Care====<br />
Article 174 of the Criminal Law Procedure Act allows absence from trial on grounds of illness and for court-ordered medical examination.<br><br />
<br />
====Right to be Informed of Charges====<br />
Subsection b of Article 144 of the Constitution ensures the right to be informed of the nature of charges in a language the person understands.<br><br />
<br />
====Right to Presumption of Innocence====<br />
Subsection a of Article 144 of the Constitution guarantees presumption of innocence until proven guilty or a guilty plea is entered.<br><br />
<br />
====Right to a Present a Defense====<br />
Subsection c of Article 144 provides the accused with adequate time and facilities to prepare their defense.<br><br />
<br />
====Right to Equal Protection of the Laws====<br />
Article 149D guarantees equality before the law and equal protection and benefit of the law.<br><br />
<br />
====Right to Bail====<br />
Article 18 of the Criminal Law Procedure provides for bail based on surety or recognizance, at the discretion of a magistrate.<br><br />
<br />
====Right Against Double Jeopardy====<br />
Article 144 prohibits retrial for the same offence once a competent court has acquitted or convicted, except on appeal.<br><br />
<br />
====Right to a Fair Trial====<br />
Article 144 mandates a fair hearing within a reasonable time by an independent and impartial court.<br><br />
<br />
====Right to Language Interpretation====<br />
Article 144 also entitles accused persons to a free interpreter if they do not understand the language of the trial.<br><br />
<br />
====Right to Habeas Corpus====<br />
Article 174 ensures presence in court throughout the trial unless disruptive conduct makes it impracticable.<br><br />
<br />
====Capital Punishment====<br />
Article 138 prohibits capital punishment for persons under 18. Article 167 substitutes life imprisonment for pregnant women sentenced to death. Article 185 details execution procedures.<br><br />
<br />
====Right to Appeal====<br />
Appeal is available via the Court of Appeals as established in the Guyanese Constitution.<br><br><br />
<br />
===Rights of Counsel===<br />
<br />
====Right of Access to the Client====<br />
Article 193 of the Criminal Law Procedure grants counsel access to detained clients subject to prison regulations.<br><br />
<br />
====Right to Confidential Communication with the Client====<br />
Article 303 of the Prison Rules Act allows private communication between prisoners and legal advisers in sight but not hearing of an officer.<br><br><br />
<br />
===Means of Protecting or Enforcing Rights===<br />
<br />
====Motions====<br />
Article 161 of the Criminal Law Procedure mandates that following a guilty verdict or plea, the registrar must ask for any reason sentence should not be passed, though omission doesn’t invalidate proceedings.<br><br />
<br />
====Contempt====<br />
Article 139 provides that deprivation of liberty must be lawful and includes punishment for contempt of court.<br><br><br />
<br />
===Pre-trial Procedures===<br />
<br />
====Police procedures====<br />
=====Complaint/information=====<br />
Article 51 authorizes a magistrate to issue a summons or warrant upon a complaint or information of an indictable offence if deemed justified.<br><br />
<br />
=====Arrest, Search and Seizure Laws=====<br />
See Rights of the Accused section above.<br><br />
<br />
=====Pre-trial detention=====<br />
Article 151 of the Constitution limits detention without trial to three months.<br><br><br />
<br />
===Court Procedures===<br />
<br />
====Pre-Trial====<br />
Article 62 of the Criminal Law Procedure allows magistrates to manage preliminary inquiries with discretion to allow or deny prosecutor arguments, receive further evidence, adjourn and change venues, and remand the accused.<br><br />
<br />
====Discovery====<br />
Article 65 requires magistrates to record witness testimony in the presence of the accused, allow cross-examination, and ensure the deposition is signed in a joint session.<br><br />
<br />
====Trial====<br />
Article 91 states trials shall be on indictment in court. Article 92 allows motion for trial at bar with multiple judges and a jury. Representation by counsel is affirmed.<br><br />
<br />
====Sentencing====<br />
Article 161 again mandates asking for mitigating statements post-verdict. Article 181–183 govern execution and consequences of non-capital sentences, including effect akin to a pardon for served sentences.<br><br />
<br />
====Appeals====<br />
Article 3 of the Summary Jurisdiction (Appeals) Act allows appeals from magistrates to the Court, including for indictable offences handled summarily.<br><br><br />
<br />
===Rights in Prison===<br />
<br />
====Right to Humane Conditions of Confinement====<br />
Articles 281–292 of the Prison Act ensure educational opportunities, access to libraries, communication with families, and regulated visitation rights.<br><br />
<br />
====Right to Medical Care in Prison====<br />
Article 239 requires a medical examination within 24 hours of prison admission.<br><br />
<br />
====Right to Mental Health Care====<br />
Article 45 emphasizes the importance of improving prisoners’ mental and physical abilities.<br><br />
<br />
====Rights of Special Populations====<br />
=====Women=====<br />
Articles 98 and 102 require daily inspection of female prisoner areas by a Woman Principal Officer and limit male access.<br />
<br />
=====Mentally Ill Prisoners=====<br />
Article 24 allows transfer to a mental hospital based on certification by a government medical officer.<br />
<br />
=====Juveniles=====<br />
Articles 31, 220, and 221 provide for transfer to approved schools and classification into Young Prisoners’ Class, with provisions for reassignment.<br><br><br />
<br />
===Sources===<br />
- Constitution of the Cooperative Republic of Guyana. Laws of Guyana. 2012. http://old.parliament.gov.gy/constitution.pdf <br><br />
- Criminal Law (Procedure). Laws of Guyana. 1998. https://moha.gov.gy/Criminal-Law-Procedure.pdf <br><br />
- Prison Act. Laws of Guyana 2012. https://mola.gov.gy.pdf <br><br />
- Police Act. Laws of Guyana. 1998. https://humanrightsinitiative.orgpoliceact.pdf <br><br />
- Summary Jurisdiction (Appeals) Act. Laws of Guyana. 1998. https://mola.gov.gy/laws.pdf <br></div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Maldives&diff=381666Maldives2025-07-16T09:10:36Z<p>IBJadmin: 1st iteration of Maldives written by Jenny uploaded by Kevin</p>
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⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>.<br />
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{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
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• Constitution of the Republic of Maldives <ref>https://www.constituteproject.org/constitution/Maldives_2008<br />
</ref><br />
<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources </h2> <br />
<br />
• [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Introduction==<br />
<br />
===Quick summary of the context/recent history===<br />
<br />
Maldives, an independent island country in the north-central Indian Ocean. It consists of a chain of about 1,200 small coral islands and sandbanks (some 200 of which are inhabited), grouped in clusters, or atolls. The population of Maldives belongs almost entirely to the Maldivian ethnic group, which is the result of various peoples settling in the islands successively through the country's history. The first settlers, it is generally believed, were Tamil and Sinhalese peoples from southern India and Sri Lanka. Traders from Arab countries, Malaya, Madagascar, Indonesia, and China visited the islands through the centuries. The official language is an Indo-European language called Dhivehi (or Maldivian); Arabic, Hindi, and English are also spoken. Islam is the state religion.<br />
<br />
After the British took possession of Ceylon in 1796, the islands became a British protectorate, a status formalized in 1887. In 1932, before which time most of the administrative powers rested with sultans or sultanas, the first democratic constitution was proclaimed, the country remaining a sultanate. A republic was proclaimed in 1953, but later that year the country reverted to a sultanate.<br />
<br />
In 1965 the Maldive Islands attained full political independence from the British, and in 1968 a new republic was inaugurated and the sultanate abolished. The last British troops left on March 29, 1976, the date thereafter celebrated in the Maldives as Independence Day. Ibrahim Nasr, the country's first president, was succeeded in 1978 by Maumoon Abdul Gayoom, who was reelected to his sixth consecutive term in 2003. The Maldives became a member of the Commonwealth in 1982 (although it withdrew its membership from 2016 to 2020 amid a political spat).<br />
<br />
In the first years of the 21st century, Gayoom's government embarked on a long-term plan to modernize and democratize the Maldives, particularly its economy and political system. The plan also identified the country's legal system as inadequate. Beginning in 2003, wide-ranging reforms were instituted to improve human rights and the system of governance. A multiparty political system was created. In 2008 a new constitution was adopted that established greater governmental checks and balances, strengthened the powers of the legislature and judiciary, and allowed women to run for president. The country's first multicandidate presidential election was held in October of that year, and former political prisoner Mohamed Nasheed was elected president, thus ending Gayoom's 30 years in office.<br />
<br />
===Type of system===<br />
<br />
Maldives operates under a hybrid system with the Constitution, Islamic Law, and English Common Law.<br />
<br />
The constitution of the Maldives was adopted in 2008. The head of state and government is the president, assisted by a vice president and a cabinet. The president and vice president are directly elected by universal suffrage to a maximum of two five-year terms. The cabinet consists of the vice president, government ministers, and the attorney general. With the exception of the vice president, members of the cabinet are appointed by the president.<br />
<br />
The unicameral legislature, called the People's Majlis, meets at least three times per year. Its members are elected to five-year terms from Male island and from each of the 20 atoll groups into which the country is divided for administrative purposes. The number of representatives from each administrative division is determined on the basis of population, with a minimum of two per division. The 2008 constitution established Islam as the official state religion. Non-Muslims cannot become citizens, and the People's Majlis is prohibited from making any law that contravenes the tenets of Islam. Other governmental bodies include civil service and human rights commissions.<br />
<br />
The highest legal authority is the Supreme Court. Its judges are appointed by the president in consultation with the Judicial Service Commission, a body of 10 members appointed or elected from various branches of the government and the general public. The Judicial Service Commission independently appoints all other judges. There are no judicial term limits; the mandatory retirement age is 70. All judges must be Sunni Muslims. The Supreme Court bases decisions upon the constitution and Maldives law; in cases in which applicable law does not exist, Sharī ah (Islamic law) is considered. Other courts are the High Court and trial courts.<br />
<br />
===The legal aid situation in the country:===<br />
<br />
====State Sponsored legal aid====<br />
The Attorney General's Office provides legal aid to indigent criminal defendants, as there is a constitutional right to counsel.<br />
<br />
====Existing NGOs providing pro bono legal aid====<br />
Public Interest Law Centre (PILC)<br />
Family Legal Clinic (FLC)<br />
<br />
====Number of lawyers (criminal/civil)====<br />
Approximately 600 registered lawyers in the Maldives, but only about 300 are actively practicing. Roughly half of the practicing lawyers are government lawyers, who cannot represent private parties or defendants. This leaves an estimated 150 lawyers available for private criminal and civil cases.<br />
<br />
===Sources of defendant's rights===<br />
<br />
====National Sources of Defendant's rights====<br />
Maldives Constitution<br />
Islamic Law (Code of Sharia)<br />
Criminal Procedure Act (2016)<br />
Human Rights Commission (Constitution Article 188)<br />
<br />
==Rights of the Accused==<br />
Independent and impartial institution. It promotes respect for human rights impartially without favour and prejudice.<br />
<br />
Appointed by the president; composed of at least five members including the chairman of the commission.<br />
<br />
===Right Against Unlawful Arrests, Searches and Seizures===<br />
<br />
No person shall be subject to search or seizure unless there is reasonable cause. (Constitution Article 47)<br />
<br />
Residential property shall be inviolable, and shall not be entered without the consent of the resident, except to prevent immediate and serious harm to life or property, or under the express authorisation of an order of the Court.<br />
<br />
===Right Against Unlawful Detention===<br />
<br />
Everyone has the right not to be arbitrarily detained, arrested or imprisoned except as provided by law enacted by the People's Majlis in accordance with Article 16 of this Constitution (Constitution Article 45)<br />
<br />
Not for arrest, a person may be taken into police custody for questioning on charges of a crime. The persons so taken into custody shall be given the legal warning (Criminal Procedure Code Chapter V Article 50)<br />
<br />
===Right Not to be Tortured or III-Treated===<br />
<br />
No person shall be subjected to cruel, inhumane or degrading treatment or punishment, or to torture (Constitution Article 54)<br />
<br />
===Right to Medical Care===<br />
<br />
Everyone deprived of liberty through arrest or detention as provided by law, pursuant to an order of the court, or being held in State care for social reasons, shall be treated with humanity and with respect for the inherent dignity of the human person. A person may be deprived of the rights or freedoms specified in this Chapter only to the extent required for the purpose for which he is deprived of his liberty (Constitution Article 57)<br />
<br />
===Right to be Informed of Charges===<br />
<br />
Everyone has the right to be informed immediately of the reasons therefore, and in writing within at least twenty four hours (Constitution Article 48)<br />
<br />
Within a maximum of 12 hours, an arrested person shall be informed in writing of the arrest, the reason for his arrest, and the offense charged against him (Criminal Procedure Code Chapter V Article 43)<br />
<br />
===Right to Presumption of Innocence===<br />
<br />
Accused is to be presumed innocent until proven guilty beyond a reasonable doubt (Constitution Article 51 Section H)<br />
<br />
===Right Against Self-Incrimination===<br />
<br />
Everyone accused of a crime has the right not to make a statement against himself (Criminal Procedure Code Chapter V Article 48)<br />
<br />
Unless otherwise provided by other law, the only way to submit material evidence is to obtain a sample of his handwriting or fingerprints or extracorporeal or intracorporeal sample to link the same to the accused, whichever is sought from him Not giving means not giving a statement against oneself<br />
<br />
===Right to Counsel and Effective Assistance===<br />
<br />
Where a person is being held in custody and questioned by the police, he shall be given an opportunity to telephone his legal counsel or his relative or any other person who can protect his interests and explain his whereabouts before the questioning begins (Criminal Procedure Code Chapter V Article 46)<br />
<br />
If the person in police custody so wishes, he has the right to request that his lawyer be with him during the questioning. and, if he so requests, the police shall give him that opportunity<br />
<br />
===Right to a Present a Defense===<br />
Everyone has the right to retain legal counsel at any instance assistance is required (Constitution Article 53)<br />
<br />
In serious criminal cases, the State provides a lawyer for an accused person and instructs where legal shall provide who cannot afford to engage one<br />
<br />
===Right to Due Process===<br />
<br />
Everyone has the right to administrative action that is lawful, procedurally fair, and expeditious (Constitution Article 43)<br />
Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.<br />
<br />
===Right to Equal Protection of the Laws===<br />
<br />
The enumeration of rights and freedoms in this Chapter are guaranteed equally to female and male persons (Constitution Article 62)<br />
<br />
The enumeration of rights and freedoms individually in this Chapter shall not be construed to deny or negate other rights retained by the people which are not specified in this Chapter.<br />
<br />
===Right to Bail===<br />
<br />
A person arrested on charges of an offense prescribed by law shall have the right to apply to the court for release on bail. Under no circumstances shall a person who has been ordered to be released on bail be kept in custody (Criminal Procedure Code Chapter VII Article 61)<br />
<br />
===Right Against Double Jeopardy===<br />
<br />
If an accused is acquitted of an offence by a court, he shall not be tried again for the same or substantially the same offence. If an accused is found guilty and punished for an offence he shall not be tried or punished again for the same or substantially the same offence (Constitution Article 60)<br />
<br />
===Right to a Fair Trial (Constitution Article 42)===<br />
<br />
<li>Right to a Trial by Jury<br />
<br />
<li>Right to a Speedy Trial<br />
<br />
<li>Right to an Impartial Judge<br />
<br />
===Right to Language Interpretation===<br />
<br />
The accused has the right to an interpreter to be provided by the State where he does not speak the language in which the proceedings are conducted, or is deaf or mute (Constitution Article 51 Section D)<br />
<br />
===Right to Habeas Corpus===<br />
<br />
No person shall be arrested or detained for an offence unless the arresting officer observes the offence being committed, or has reasonable and probable grounds or evidence to believe the person has committed an offence or is about to commit an offence, or under the authority of an arrest warrant issued by the court (Constitution Articles 45/46)<br />
<br />
===Capital Punishment===<br />
<br />
The Maldives government announced on December 20, 2023, that it plans to reinstate the death penalty, ending a de facto moratorium on its use that dates back to the 1950s (Human Rights Watch)<br />
<br />
===Right to Appeal===<br />
<br />
Everyone related to a matter has the right to appeal a conviction and sentence, or judgement or order in a criminal or civil matter (Constitution Article 56)<br />
<br />
==Rights of Counsel (Constitution Article 53)==<br />
===Right to Provide Representation===<br />
Everyone has the right to retain legal counsel at any instance assistance is required (Constitution Article 53) <br />
<br />
===Right of Access to the Client===<br />
To retain and instruct legal counsel without delay and to be informed of this right, and to have access to legal counsel facilitated until the conclusion of the matter for which he is under arrest or detention (Constitution Article 48 Section B)<br />
<br />
===Right to Information===<br />
To be informed immediately of the reasons therefore (of arrest), and in writing within at least twenty four hours (Constitution Article 48 Section A) <br />
<br />
===Right to Confidential Communication with the Client===<br />
To have adequate time and facilities for the preparation of his defence and to communicate with and instruct legal counsel of his own choosing (Constitution Article 51)<br />
<br />
==Means of Protecting or Enforcing Rights==<br />
===Exclusionary Rule===<br />
<br />
In the following circumstances, the information referred to in Article 129 of this Act shall not be disclosed or given an opportunity to be examined (Criminal Procedure Code Article 130)<br />
Reports and documents prepared by a public prosecutor or agent for the sole purpose of that office or agency in connection with an investigation or prosecution of a case<br />
A statement made by a government employee or lawyer, witness or potential witness<br />
<br />
===Nullity of Procedure===<br />
<br />
A procedure is considered null and void if it deviates from legal procedures and principle. This can include judicial or legal obstacles for the judge, missing court seals or signatures, or a lack of reasoning in the decision or ruling<br />
<br />
===Contempt===<br />
<br />
The trial judge reserves the right to take action against any party who commits an act of contempt of court at any stage of an ongoing trial (Criminal Procedure Code Article 170)<br />
<br />
==Pre-trial Procedures==<br />
<br />
====Complaint/information====<br />
After notice of an alleged offence has been brought to the attention of the investigating authorities, the matter shall be investigated promptly, and where warranted, the Prosecutor General shall lay charges as quickly as possible (Constitution Article 50)<br />
<br />
====Arrest, Search and Seizure Laws====<br />
A person may be stopped and searched without a warrant only if he/she is: (Criminal Procedure Code Chapter V)<br />
<li>Found at the scene of a crime<br />
<li>Believed to be in possession of a knife/dagger<br />
<li>Believed to be in possession of drugs or alcohol<br />
<li>Believed to be in possession of stolen property or of property for which ownership cannot be proved<br />
<br><br />
<br><br />
Only persons of the same sex as the person being searched shall touch the body of the person being searched and shall be present when he is searched<br />
<br />
<br><br />
<br><br />
The police can arrest a person without a court order if:<br />
<li>There is sufficient evidence that a person has committed an offence<br />
<li>To prevent a person from committing an offence<br />
<br />
<br><br />
<br><br />
When applying for a court order to arrest a person, the police shall submit the following information to the court:<br />
<li>The offense under which law the court order is sought<br />
<li>The name and address of the person to be arrested<br />
<li>Evidence that he committed the offence<br />
<br />
<br><br />
<br><br />
While making the arrest, the police officer must:<br />
<li>Give the arrested person an introduction of himself and showing him an official document identifying him as a police officer<br />
<li>Give a copy of the court order to the arrested person<br />
<br><br />
<br><br />
When arresting and searching a person in custody, the police have the power to take and seize as evidence anything found in his hands, body or clothing relating to the offense charged against him<br />
<br />
====Interrogation====<br />
Before formal charge in court<br />
<br />
The offense involved in every criminal charge brought by the State shall be adequately investigated (Criminal Procedure Code Chapter I Article 5)<br />
<br />
After notice of an alleged offence has been brought to the attention of the investigating authorities, the matter shall be investigated promptly, and where warranted, the Prosecutor General shall lay charges as quickly as possible (Constitution Article 50)<br />
<br />
<br />
Procedures to protect against illegal interrogation<br />
<br />
No confession shall be admissible in evidence unless made in court by an accused who is in a sound state of mind. No statement or evidence must be obtained from any source by compulsion or by unlawful means and such statement or evidence is inadmissible in evidence (Constitution Article 52)<br />
<br />
==Court Procedures==<br />
===Pre-Trial===<br />
<br />
====Charging Instrument====<br />
During the investigation stage, The procedures to be followed by law enforcement agencies in filing complaints in connection with criminal offences, searching premises and property, seizing property, stopping, searching and arresting persons (Criminal Procedure Code Chapter I)<br />
<br />
====Preliminary Hearing====<br />
The court shall hold a preliminary hearing in every case brought before the court of competent jurisdiction to determine whether the charge against the person accused of the offense is clear to him, to examine his response to the charge and to determine whether there is a place to proceed (Criminal Procedure Code Chapter XII)<br />
<br />
Purpose:<br />
<li>Ensure the defendant has received copies of the claim/all documents.<br />
<br />
<li>Explain to the defendant what the charge is against him.<br />
<br />
<li>Allow them to obtain a defense counsel or spokesperson, if not yet.<br />
<br />
<li>Disclose information and documents required for the trial and determine where to proceed with prosecution.<br />
<li>Prescribe time limit for filing pre-trial motions.<br />
<li>Hold hearings on pre-trial motions and schedule date/times for hearings.<br />
<br />
<br><br />
<br><br />
Defendant answers charge by 1) confession of guilt or 2) denial of charge or 3) no appearance and deemed as pleading not guilty.<br />
<br />
<br><br />
<br><br />
Judge shall inform the defendant that they have a right to reasonable time and resources within the scope of the Criminal Procedure Act to seek acquittal, seek a lawyer, use an interpreter, not make a statement against themselves, question the witnesses produced by the prosecution, and request the court to produce witnesses of their choice.<br />
<br />
<br><br />
<br><br />
If pleaded not guilty, the prosecution shall disclose all the evidence it intends to present to prove the charge against the defendant. The defendant shall be given an opportunity to present evidence in defence, if any.<br />
Both defendant and prosecution shall be present at the hearing.<br />
<br />
====Pre-Trial Motions (Criminal Procedure Code Chapter XIV)====<br />
Motion that may be filed:<br />
<br />
A party to the case may file a defense, objection or motion with the court before the commencement of the trial that can be decided without considering the subject matter of the trial.<br />
<br />
Submitting motions:<br />
<br />
Should be filed 30 days prior to trial commencement. The judge shall decide how to hold the hearings within that period. The motion should be accompanied by supporting documents.<br />
<br />
Motion includes:<br />
<br />
Any defect in the filing of the claim and the form in which the claim is filed.<br />
<br />
A defense that may be an obstacle to prosecution; would be raised before trial.<br />
<br />
Declaring certain evidence inadmissible.<br />
<br />
====Discovery (Criminal Procedure Code Chapter 14)====<br />
The prosecution shall give the defendant the opportunity to inspect, copy and photograph the following materials upon the defendant's written request.<br />
<br />
The prosecution shall disclose information under sub-paragraphs (1) and (2) of this Article if the defendant believes that the information was obtained during an investigation or in response to a question asked by a law enforcement officer.<br />
<br />
The State shall provide the defendant with his criminal record upon written request.<br />
<br />
Upon written request by the defendant, the prosecution shall provide the results of all physical or mental or scientific tests in connection with the case if they are intended to be used in the preparation of the defendant's defense, or at trial in the prosecution's prosecution.<br />
Before the trial, the prosecution shall disclose all evidence against the defendant if requested in writing.<br />
<br />
Upon written request by the defendant, the prosecution shall provide the defendant with a list containing the names and addresses of all witnesses the prosecution intends to present.<br />
<br />
===Trial (Criminal Procedure Code Part V)===<br />
<br />
====Nature of the Trial (Criminal Procedure Code Chapter XVII)====<br />
In criminal cases, the following courts have jurisdiction: Superior, Criminal, Juvenile.<br />
=====Logistics=====<br />
If the accused has pleaded not guilty at the preliminary hearing, and is detained, their hearing would take place within 70 days.<br />
<br />
If the accused has pleaded guilty at the preliminary hearing, they will be heard by expedited trial within a maximum of 5 days.<br />
<br />
In exceptional circumstances, the accused can request an extension of the time provided for the commencement of the trial at the latest. The court has discretion to grant such extension if in the best interest of administration of justice.<br />
<br />
=====Fair and uninterrupted trial=====<br />
Every criminal case shall be tried in a fair, impartial and transparent manner.<br />
<br />
After a criminal case is charged, the case shall be tried without interruption.<br />
<br />
=====Public hearing=====<br />
All stages of the trial of criminal cases shall be conducted in public.<br />
<br />
The following circumstances allow for non-public trials:<br />
<li>Juvenile cases<br />
<li>Protect the interests of the person injured by the crime<br />
<li>Uphold moral norms of society and overall peace<br />
<li>Prevent disruption of national security<br />
<br />
====Lawyers====<br />
Prosecutor General's responsibilities/powers include:<br />
<li>Supervise the prosecution of all criminal offences in the Maldives<br />
<li>Consider/assess evidence presented by investigating bodies to determine whether charges should be pursued<br />
<li>Institute criminal proceedings against any person before any court in respect of any alleged offence<br />
<br />
====Expert Witnesses====<br />
Expert witnesses can provide specialized knowledge to the court on matters beyond the judge's typical understanding. These experts are expected to offer impartial and well-reasoned analysis based on facts and their expertise (LexisNexus)<br />
<br />
====Judges====<br />
The President as the Head of State shall appoint the Judges of the Supreme Court, after consulting the Judicial Service Commission and confirmation of the appointees by a majority of the members of the People's Majlis present and voting (Constitution Article 148)<br />
<br />
All other Judges shall be appointed by the Judicial Service Commission, to be established in accordance with the provisions of this Constitution (Constitution Article 148)<br />
<br />
A person appointed as a Judge in accordance with law, must possess the educational qualifications, experience and recognized competence necessary to discharge the duties and responsibilities of a Judge, and must be of high moral character (Constitution Article 149)<br />
<br />
====Victims====<br />
Trials will be conducted in public, except cases when the presiding judge deems it not in the best interest of victims of a crime (Constitution Article 42)<br />
<br />
===Sentencing===<br />
<br />
The application of the criminal law or criminal procedure, including the conduct of investigations, criminal proceedings and enforcement of sentences as provided by law, shall extend to the accused person only and shall not affect the legal rights or obligations of any other person (Constitution Article 44)<br />
<br />
===Appeals===<br />
<br />
====Appeals Process====<br />
The High Court and the Supreme Court have jurisdiction to hear criminal cases on appeal (Criminal Procedure Code Chapter I Article 6) <br />
<br />
====Right to Counsel====<br />
<br />
"Appeal" means an appeal by a party to the case to the High Court of a judgment of a criminal prosecution by a court of competent jurisdiction finding the accused guilty or not guilty of the offense stated in the prosecution. or the judgment of the High Court on appeal against the judgment of the lower court, to be appealed by that party to the Supreme Court (Criminal Procedure Code Chapter I Article 13)<br />
<br />
====Collateral Remedies====<br />
Everyone who has been arrested or detained without legal authority or justification has the right to be compensated (Constitution Article 58)<br />
<br />
==Rights in prison==<br />
<br />
====Right to Humane Conditions of Confinement====<br />
Everyone deprived of liberty through arrest or detention as provided by law, pursuant to an order of the court, or being held in State care for social reasons, shall be treated with humanity and with respect for the inherent dignity of the human person. A person may be deprived of the rights or freedoms specified in this Chapter only to the extent required for the purpose for which he is deprived of his liberty (Constitution Article 57)<br />
<br />
====Immigrant's Rights in Detention====<br />
May be tried with the assistance of an interpreter, fi they do not speak Dhvehi (Article 167 Criminal Procedure Act)<br />
<br />
====Right to Medical Care in Prison====<br />
Prisoners are entitled to free medical care, including initial health screenings, general check-ups, specialist consultations, and treatment both within the prison and, if needed, outside the prison.<br />
Support for mental health conditions included.<br />
<br />
====Restriction of rights====<br />
The enumeration of rights and freedoms in this Chapter are guaranteed equally to female and male persons (Constitution Article 62)<br />
The enumeration of rights and freedoms individually in this Chapter shall not be construed to deny or negate other rights retained by the people which are not specified in this Chapter.<br />
<br />
====Rights of Special Populations====<br />
Everyone is entitled to the rights and freedoms included in this Chapter without discrimination of any kind, including race, national origin, colour, sex, age, mental or physical disability, political or other opinion, property, birth or other status, or native island (Constitution Article 17)<br />
<br />
Special assistance or protection to disadvantaged individuals or groups, or to groups requiring special social assistance, as provided in law shall not be deemed to be discrimination (Constitution Article 17)<br />
=====LGBT Prisoners=====<br />
Same-sex sexual activity is criminalized, with potential penalties including imprisonment and lashings. The legal framework, influenced by Sharia law, makes LGBTQ+ individuals targets for discrimination, hate crimes, and other human rights violations.<br />
<br />
=====Mentally Ill Prisoners=====<br />
Individuals with mental illness have the right to healthcare, including support for their condition<br />
<br />
=====Juveniles=====<br />
Protected under the Juvenile Justice Act, a dedicated system that encourages them to desist from crime, operates in a child-friendly environment, and provides them with the necessary rehabilitative treatment to enable them to return to society for good and play constructive roles. The Act prescribes the rules to be established for the establishment of a juvenile justice system.<br />
<br />
Sources:<br />
https://www.britannica.com/place/Indian-Ocean<br />
https://mvlaw.gov.mv/dv/legislations/128/consolidations/1272<br />
https://mvlaw.gov.mv/dv/legislations/140/consolidations/977<br />
https://en.corrections.gov.mv/2017/09/21/healthcare/<br />
https://www.lexisnexis.co.uk/legal/guidance/instructing-experts-in-criminal-proceedings#:~:text=Part%2019%20of%20the%20Criminal,Article%20Summary<br />
https://www.hrw.org/news/2023/12/21/maldives-reverse-plans-reinstate-death-penalty#:~:text=(Bangkok)%20%E2%80%93%20The%20Maldives%20government,this%20cruel%20and%20inhumane%20practice.%E2%80%9D<br />
https://judiciariesworldwide.fjc.gov/country-profile/maldives#:~:text=Legal%20System,aid%20to%20indigent%20criminal%20defendants<br />
https://www.undp.org/sites/g/files/zskgke326/files/migration/mv/Final_word_doc-Legal-Aid-Options-in-the-Maldives.pdf#:~:text=There%20are%20approximately%20600%20registered%20lawyers%20in.precluded%20from%20representing%20private%20parties%20or%20defendants<br />
https://www.constituteproject.org/constitution/Maldives_2008<br />
https://mvlaw.gov.mv/dv/legislations/128/consolidations/1272</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Criminal_Justice_Systems_Around_the_World&diff=381665Criminal Justice Systems Around the World2025-07-16T08:42:11Z<p>IBJadmin: </p>
<hr />
<div>Criminal justice systems can be loosely classified as either common, civil, Islamic or socialist law in nature. However, today many jurisdictions have adopted hybrid models that combine elements of various legal systems. Many of these systems share a common set of [[Core Values | core values]]. In addition, most criminal justice systems have adopted a [[Legality Principle | legality principle]]. Almost every criminal justice system is made of of similar [[Actors in the Criminal Justice System | actors]].<br />
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==Country Pages==<br />
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<br />
*[[Afghanistan]]<br />
*[[Albania]]<br />
*[[Algeria]]<br />
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*Armenia<br />
*[[Australia]]<br />
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*[[Belgium]]<br />
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*[[Cameroon]]<br />
*[[Canada]]<br />
*[[Cape Verde]]<br />
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*[[Chile]]<br />
*[[China]]<br />
**[[Hong Kong]]<br />
**[[Taiwan]]<br />
*[[Colombia]]<br />
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*[[ République du Congo (Congo-Brazzaville)|Congo, Republic of the]]<br />
*[[Costa Rica]]<br />
*[[Croatia]]<br />
*[[Cuba]]<br />
*[[Cyprus]]<br />
*[[Czech Republic]]<br />
*[[Denmark]]<br />
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</div><div style="float: left; width:33%"><br />
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*[[Germany]]<br />
*[[Ghana]]<br />
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*[[Guinea]]<br />
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*Haiti<br />
*[[Honduras]]<br />
*[[Hungary]]<br />
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*[[Indonesia]]<br />
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*[[Italy]]<br />
*[[Côte d’Ivoire|Ivory Coast]]<br />
*[[Jamaica]]<br />
*[[Japan]]<br />
*Jordan<br />
*[[Kazakhstan]]<br />
*[[Kenya]]<br />
*Kiribati<br />
*[[Korea, North]]<br />
*[[South Korea|Korea, South]]<br />
*Kosovo<br />
*Kuwait<br />
*[[Kyrgyzstan]]<br />
*[[Laos]]<br />
*Latvia<br />
*[[Lebanon]]<br />
*[[Lesotho]]<br />
*[[Liberia]]<br />
*Libya<br />
*[[Liechtenstein]]<br />
*[[Lithuania]]<br />
*[[Luxembourg]]<br />
*Macedonia<br />
*[[Madagascar]]<br />
*[[Malawi]]<br />
*[[Malaysia]]<br />
*[[Maldives]]<br />
*[[Mali]]<br />
*Malta<br />
*Marshall Islands<br />
*[[Mauritania]]<br />
*[[Mauritius]]<br />
*[[Mexico]]<br />
*Micronesia<br />
*[[Moldova]]<br />
*[[Monaco]]<br />
*[[Mongolia]]<br />
*[[Montenegro]] <br />
*[[Morocco]]<br />
*[[Mozambique]]<br />
*[[Myanmar]]<br />
*[[Namibia]]<br />
*Nauru<br />
*[[Nepal]]<br />
*[[Netherlands]]<br />
*[[New Zealand]]<br />
*[[Nicaragua]]<br />
*[[Niger]]<br />
*[[Nigeria]]<br />
*Norway<br />
*[[Oman]]<br />
<br />
</div><div style="float: left; width: 33%"><br />
<br />
*[[Pakistan]]<br />
*Palau<br />
*Palestine<br />
*[[Panama]]<br />
*[[Papua New Guinea]]<br />
*[[Paraguay]]<br />
*[[Peru]]<br />
*[[Philippines]]<br />
*[[Poland]]<br />
*[[Portugal]]<br />
*[[Qatar]]<br />
*[[Romania]]<br />
*[[Russia]]<br />
*[[Rwanda]]<br />
*Saint Kitts and Nevis<br />
*[[Saint Lucia]]<br />
*Saint Vincent and the Grenadines<br />
*Samoa<br />
*San Marino<br />
*[[São Tomé and Príncipe]]<br />
*[[Saudi Arabia]]<br />
*[[Senegal]]<br />
*[[Serbia]]<br />
*[[Seychelles]]<br />
*[[Sierra Leone]]<br />
*[[Singapore]]<br />
*[[Slovakia]]<br />
*Slovenia<br />
*[[Solomon Islands]]<br />
*[[Somalia]]<br />
*[[South Africa]]<br />
*[[South Sudan]]<br />
*[[Spain]]<br />
*[[Sri Lanka]]<br />
*[[Sudan]]<br />
*Suriname<br />
*[[Swaziland]]<br />
*[[Sweden]]<br />
*[[Switzerland]]<br />
*[[Syria]]<br />
*[[Tajikistan]]<br />
*[[Tanzania]] <br />
**[[Zanzibar]]<br />
*[[Thailand]]<br />
*[[Togo]]<br />
*[[Tonga]]<br />
*[[Trinidad and Tobago]]<br />
*[[Tunisia]]<br />
*[[Turkey]]<br />
*[[Turkmenistan]]<br />
*[[Tuvalu]] <br />
*[[Uganda]] <br />
*[[Ukraine]]<br />
*[[United Arab Emirates]]<br />
*United Kingdom<br />
**[[England and Wales]]<br />
**[[Scotland]]<br />
*[[United States]]<br />
**[[Puerto Rico]]<br />
*[[Uruguay]] <br />
*[[Uzbekistan]]<br />
*[[Vanuatu]]<br />
*[[Venezuela]]<br />
*[[Vietnam]] <br />
*[[Yemen]]<br />
*[[Zambia]]<br />
*[[Zimbabwe]] <br />
<br />
<br />
<br />
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{{Languages|Criminal Justice Systems Around the World}}<br />
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==We need your help==<br />
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See [[Legal Aid Systems and Supporting NGOs around the world]]</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Criminal_Justice_Systems_Around_the_World&diff=381664Criminal Justice Systems Around the World2025-07-15T14:12:09Z<p>IBJadmin: /* Country Pages */</p>
<hr />
<div>Criminal justice systems can be loosely classified as either common, civil, Islamic or socialist law in nature. However, today many jurisdictions have adopted hybrid models that combine elements of various legal systems. Many of these systems share a common set of [[Core Values | core values]]. In addition, most criminal justice systems have adopted a [[Legality Principle | legality principle]]. Almost every criminal justice system is made of of similar [[Actors in the Criminal Justice System | actors]].<br />
<br />
==Country Pages==<br />
<div style="float: left; width: 33%"><br />
<br />
*[[Afghanistan]]<br />
*[[Albania]]<br />
*[[Algeria]]<br />
*[[Andorra]]<br />
*[[Angola]]<br />
*[[Antigua and Barbuda]]<br />
*[[Argentina]]<br />
*Armenia<br />
*[[Australia]]<br />
*[[Austria]]<br />
*[[Azerbaijan]]<br />
*[[The Bahamas]]<br />
*Bahrain<br />
*[[Bangladesh]]<br />
*Barbados<br />
*[[Belarus]]<br />
*[[Belgium]]<br />
*[[Belize]]<br />
*[[Benin]]<br />
*[[Bhutan]]<br />
*[[Bolivia]]<br />
*[[Bosnia and Herzegovina]]<br />
*[[Botswana]]<br />
*[[Brazil]]<br />
*[[Brunei]]<br />
*[[Bulgaria]]<br />
*[[Burkina Faso]]<br />
*[[Burundi]] <br />
*[[Cambodia]]<br />
*[[Cameroon]]<br />
*[[Canada]]<br />
*[[Cape Verde]]<br />
*[[République Centrafricaine|Central African Republic]]<br />
*[[Chad]]<br />
*[[Chile]]<br />
*[[China]]<br />
**[[Hong Kong]]<br />
**[[Taiwan]]<br />
*[[Colombia]]<br />
*[[Comoros]]<br />
*[[Congo, Democratic Republic of the]]<br />
*[[ République du Congo (Congo-Brazzaville)|Congo, Republic of the]]<br />
*[[Costa Rica]]<br />
*[[Croatia]]<br />
*[[Cuba]]<br />
*[[Cyprus]]<br />
*[[Czech Republic]]<br />
*[[Denmark]]<br />
*Djibouti<br />
*Dominica<br />
*[[Dominican Republic]]<br />
*East Timor<br />
*[[Ecuador]]<br />
*[[Egypt]]<br />
*[[El Salvador]]<br />
*[[Equatorial Guinea]]<br />
*[[Eritrea]]<br />
*Estonia<br />
*[[Ethiopia]]<br />
*Fiji<br />
*[[Finland]]<br />
*[[France]]<br />
**French Guiana<br />
**[[French Polynesia]]<br />
*[[Gabon]]<br />
*[[Gambia, The]]<br />
*[[Georgia]]<br />
<br />
</div><div style="float: left; width:33%"><br />
<br />
*[[Germany]]<br />
*[[Ghana]]<br />
*[[Greece]]<br />
*Grenada<br />
*[[Guatemala]]<br />
*[[Guinea]]<br />
*[[Guinea-Bissau]]<br />
*Guyana<br />
*Haiti<br />
*[[Honduras]]<br />
*[[Hungary]]<br />
*Iceland<br />
*[[India]]<br />
*[[Indonesia]]<br />
*[[Iran]]<br />
*[[Iraq]]<br />
*[[Ireland]]<br />
*[[Island of Guam]]<br />
*[[Israel]]<br />
*[[Italy]]<br />
*[[Côte d’Ivoire|Ivory Coast]]<br />
*[[Jamaica]]<br />
*[[Japan]]<br />
*Jordan<br />
*[[Kazakhstan]]<br />
*[[Kenya]]<br />
*Kiribati<br />
*[[Korea, North]]<br />
*[[South Korea|Korea, South]]<br />
*Kosovo<br />
*Kuwait<br />
*[[Kyrgyzstan]]<br />
*[[Laos]]<br />
*Latvia<br />
*[[Lebanon]]<br />
*[[Lesotho]]<br />
*[[Liberia]]<br />
*Libya<br />
*[[Liechtenstein]]<br />
*[[Lithuania]]<br />
*[[Luxembourg]]<br />
*Macedonia<br />
*[[Madagascar]]<br />
*[[Malawi]]<br />
*[[Malaysia]]<br />
*[[Maldives]]<br />
*[[Mali]]<br />
*Malta<br />
*Marshall Islands<br />
*[[Mauritania]]<br />
*[[Mauritius]]<br />
*[[Mexico]]<br />
*Micronesia<br />
*[[Moldova]]<br />
*[[Monaco]]<br />
*[[Mongolia]]<br />
*[[Montenegro]] <br />
*[[Morocco]]<br />
*[[Mozambique]]<br />
*[[Myanmar]]<br />
*[[Namibia]]<br />
*Nauru<br />
*[[Nepal]]<br />
*[[Netherlands]]<br />
*[[New Zealand]]<br />
*[[Nicaragua]]<br />
*[[Niger]]<br />
*[[Nigeria]]<br />
*Norway<br />
*[[Oman]]<br />
<br />
</div><div style="float: left; width: 33%"><br />
<br />
*[[Pakistan]]<br />
*Palau<br />
*Palestine<br />
*[[Panama]]<br />
*[[Papua New Guinea]]<br />
*[[Paraguay]]<br />
*[[Peru]]<br />
*[[Philippines]]<br />
*[[Poland]]<br />
*[[Portugal]]<br />
*[[Qatar]]<br />
*[[Romania]]<br />
*[[Russia]]<br />
*[[Rwanda]]<br />
*Saint Kitts and Nevis<br />
*[[Saint Lucia]]<br />
*Saint Vincent and the Grenadines<br />
*Samoa<br />
*San Marino<br />
*[[São Tomé and Príncipe]]<br />
*[[Saudi Arabia]]<br />
*[[Senegal]]<br />
*[[Serbia]]<br />
*[[Seychelles]]<br />
*[[Sierra Leone]]<br />
*[[Singapore]]<br />
*[[Slovakia]]<br />
*Slovenia<br />
*[[Solomon Islands]]<br />
*[[Somalia]]<br />
*[[South Africa]]<br />
*[[South Sudan]]<br />
*[[Spain]]<br />
*[[Sri Lanka]]<br />
*[[Sudan]]<br />
*Suriname<br />
*[[Swaziland]]<br />
*[[Sweden]]<br />
*[[Switzerland]]<br />
*[[Syria]]<br />
*[[Tajikistan]]<br />
*[[Tanzania]] <br />
**[[Zanzibar]]<br />
*[[Thailand]]<br />
*[[Togo]]<br />
*[[Tonga]]<br />
*[[Trinidad and Tobago]]<br />
*[[Tunisia]]<br />
*[[Turkey]]<br />
*[[Turkmenistan]]<br />
*[[Tuvalu]] <br />
*[[Uganda]] <br />
*[[Ukraine]]<br />
*[[United Arab Emirates]]<br />
*United Kingdom<br />
**[[England and Wales]]<br />
**[[Scotland]]<br />
*[[United States]]<br />
**[[Puerto Rico]]<br />
*[[Uruguay]] <br />
*[[Uzbekistan]]<br />
*[[Vanuatu]]<br />
*[[Venezuela]]<br />
*[[Vietnam]] <br />
*[[Yemen]]<br />
*[[Zambia]]<br />
*[[Zimbabwe]] <br />
<br />
<br />
<br />
</div><br />
<br />
{{Languages|Criminal Justice Systems Around the World}}<br />
<br />
==We need your help==<br />
Can you assist the creation of a country-page? Email elearning@ibj.org.<br />
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See [[Legal Aid Systems and Supporting NGOs around the world]]</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Iran&diff=381663Iran2025-07-15T10:36:06Z<p>IBJadmin: </p>
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⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>.<br />
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* Constitution of the Islamic Republic of Iran <ref>https://web.archive.org/web/20161027004409/https://en.parliran.ir/eng/en/Constitution</ref><br />
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* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
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==Background==<br />
<br />
Iran executed at least 975 people in 2024, the highest number since 2015, with serious due process violations including lack of access to lawyers. The key challenge remains that Iran is intensifying its crackdown on human rights lawyers, targeting those who defend protesters and dissidents. <br />
<br />
<br><br />
<br />
==The Legal system==<br />
<br />
Iran operates under a hybrid system combining Islamic law (Sharia) with civil law traditions, heavily influenced by the 1979 Islamic Revolution<br />
<br />
In accordance with the Islamic Penal Code, any act or failure to act for which a punishment has been designated in the laws is a crime. Also, according to Article 2 of the Code of Criminal Procedure, all crimes have a divine aspect. All individuals who have reached the age of maturity designated in Sharia law have complete criminal responsibility and in the case of commission of a crime, will be pursued and punished accordingly. Boys are deemed mature by 15 lunar years and girls 9 lunar years. If a mature person commits a crime, they will be tried based on the Code of Criminal Procedure of the Islamic Republic of Iran. <br />
<br />
<br />
<br />
==Legal Aid==<br />
<br />
'''State-sponsored legal aid''': While the right to counsel is established, the practical availability of free or subsidized legal aid can be limited due to factors like insufficient funding, lack of awareness, and inadequate outreach efforts. <br />
<br />
'''Existing NGOs providing pro bono legal aid'''<br />
<ul><li>UNHCR Iran operates a Legal Services Project with the objective of providing legal assistance to refugees in Iran and resolving disputes through alternative dispute resolution mechanisms.<br />
<li>Iranian Bar Associations Union <br />
<li>Defenders of Human Rights Center (DHRC)<br />
<li>Islamic Human Rights Commission<br />
</li></ul><br />
<br />
'''Number of lawyers''': The Iranian Bar Association is estimated to have around 60,000 members. Detailed breakdown between criminal and civil lawyers is unknown. <br />
<br />
'''Human Rights Organizations'''<br />
<br />
Iran Human Rights (IHR): This non-profit, independent organization focuses on building a strong civil society by empowering citizens and promoting human rights as defined by the Universal Declaration of Human Rights. IHR is particularly known for its work on abolishing the death penalty in Iran and monitoring human rights abuses. <br />
<br />
Center for Human Rights in Iran (CHRI):<br />
Formerly known as the International Campaign for Human Rights in Iran, CHRI is an American non-governmental organization dedicated to promoting human rights in Iran. <br />
<br />
Defenders of Human Rights Center (DHRC):<br />
Founded in 2001, the DHRC advocates for the rights of women, political prisoners, and minorities in Iran. Its president is Nobel Peace Prize laureate Shirin Ebadi. <br />
<br />
Human Rights Activists in Iran (HRAI):<br />
This non-political and non-governmental organization aims to promote, safeguard, and sustain human rights in Iran. HRAI monitors human rights violations, disseminates information, and advocates for various human rights, including freedom of speech, association, and press. <br />
<br />
Impact Iran:<br />
A coalition of 19 non-governmental organizations, Impact Iran works to advocate for human rights and drive positive change in Iran by amplifying the voices of Iranian civil society. <br />
<br />
Ahwaz Human Rights Organization:<br />
This NGO focuses on defending the human rights of the Ahwazi Arab minority in Iran. <br />
<br><br />
<br />
<br />
==Source of Defendants Rights==<br />
'''National Sources of Defendant’s Rights'''<br />
<br />
<li>Iranian Constitution<br />
<br />
* Article 32 states that no person may be arrested except according to and in the manner laid down in the law. If someone is detained, the subject matter of the charge, with reasons (for bringing it), must immediately be communicated and explained in writing to the accused. Within at most 24 hours the file on the case and preliminary documentation must be referred to the competent legal authority. <br />
<br />
* Article 34 states that everyone may refer to the competent courts in search of justice. <br />
<br />
* Article 35 of the Iranian Constitution explicitly states that both parties in a lawsuit have the right to select an attorney, and if they cannot afford one, arrangements must be made to provide legal counsel according to the Center for Human Rights in Iran. <br />
<br />
* Article 36 says that a sentence to punishment and its execution must only be by the decision of a competent court, and by virtue of law.<br />
<br />
* Article 37 says that innocence is the basic principle. No person is considered legally guilty, except in cases where his guilt is established in a competent court.<br />
<br />
* Article 38 prevents use of torture to obtain information. <br />
<br />
* Article 39 protects the arrested person’s dignity and respect.<br />
<br />
<li>Citizenship Rights Law (2004)<br />
<br />
<li>Islamic Penal Code (2013)<br />
<br />
<li>Code of Criminal Procedure of Iran (1999)<br />
<br><br><br />
'''International Sources of defendant’s rights'''<br />
<li>International Covenant on Civil and Political Rights (ICCPR). This treaty, which Iran is a party to, includes guarantees of a fair trial, freedom of expression, and freedom of association.<br />
* Article 14: Guarantees the right to a fair trial and due process of law. <br />
* Article 19: Protects freedom of expression. <br />
* Article 22: Protects freedom of association. <br />
<br />
<li>Iran has signed but not ratified CAT (Convention Against Torture) <br />
<br><br><br />
<br />
==Rights of the Accused==<br />
<br />
'''Presumption of innocence:'''<br />
<br />
Article 37 of the Iranian Constitution says that innocence is the basic principle. No person is considered legally guilty, except in cases where his guilt is established in a competent court. <br />
<br />
'''Right to defense:'''<br />
Article 3 of the “Citizenship Rights Law” (2004) clearly required courts and prosecution offices to respect the right of the accused to a defense and to provide the accused with the services of a defense attorney. <br />
<br />
'''Right to counsel:'''<br />
Article 35 of the Iranian Constitution explicitly states that both parties in a lawsuit have the right to select an attorney, and if they cannot afford one, arrangements must be made to provide legal counsel according to the Center for Human Rights in Iran. Article 185 of the Islamic Penal Code protects rights to an attorney. <br />
<br />
'''Right to a fair trial:'''<br />
Article 34 Constitution states that everyone may refer to the competent courts in search of justice. <br />
Article 36 Constitution says that a sentence to punishment and its execution must only be by the decision of a competent court, and by virtue of law.<br />
Judges are appointed based on ideology rather than legal training.<br />
<br />
'''Temporary detention (only with evidence):'''<br />
Article 5 of the “Citizenship Rights Law” (2004) forbids arbitrary detention of individuals. Officials must also provide the family of the detainee with information. <br />
<br />
'''Confession without coercion:''' <br />
Article 37 Constitution prevents use of torture to obtain information. <br />
Article 169 Islamic Penal Code: Any confession made under duress, coercion, torture, and/or mental or physical harassment and molestation shall have no value and credit; and the court shall interrogate the accused, again. <br />
<br />
'''Qesās (Retaliation):''' retribution where victim or family members can demand similar punishments <br />
<br />
'''Civil rights upheld:'''<br />
Article 39 Constitution protects the arrested person’s dignity and respect.<br />
Right Against Unlawful Arrests, Searches, Seizures, and Unlawful Detention <br />
Article 32 Constitution states that no person may be arrested except according to and in the manner laid down in the law. If someone is detained, the subject matter of the charge, with reasons (for bringing it), must immediately be communicated and explained in writing to the accused. Within at most 24 hours the file on the case and preliminary documentation must be referred to the competent legal authority. <br />
<br />
'''Right Not to be Tortured or Ill-Treated:'''<br />
Article 37 Constitution prevents use of torture to obtain information. <br />
<br />
'''Right to Medical Care:'''<br />
Article 495 of the Iranian Penal Code states that a physician is responsible for "diyah" (blood money) if their treatment results in harm to a patient, unless the treatment was medically and technically sound and the physician was not at fault, according to the International Academic Institute for Science and Technology.<br />
<br />
<br><br />
<br />
==Rights of Counsel==<br />
<br />
'''Right to Provide Representation:''' Guaranteed by article 35 of the Constitution.<br />
<br />
'''Right of Access to the Client:''' Investigators can block the presence of trial attorneys during interrogations, according to Article 128 of the Code of Criminal Procedure (1999). Some also use the note under this article to refuse to accept a retainer letter from an attorney.<br />
<br />
'''Right to Information:''' Trial attorneys are at times unable to accompany their clients through the criminal investigation of their case, and also not able to read the case and prepare motions and defenses on their behalf.<br />
<br />
'''Right to Confidential Communication with the Client:''' Investigators can refuse to accept a retainer letter from an attorney, thereby denying confidential communications.<br />
<br><br />
<br />
<br />
==Means of Protecting or Enforcing Rights==<br />
<br />
'''Exclusionary Rule:'''<br><br />
While Iran does not have explicit exclusionary rule that automatically excludes any evidence obtained illegally, there exists protection against using coercion and torture for extracting confession or information (Article 38 of Iranian Constitution).<br />
<br><br><br />
'''Nullity of Procedure:'''<br><br />
Nullity can occur when a court's actions or decisions contravene established legal principles, such as the principle of legality (crimes and punishments must be defined by law) or the principle of due process (fair trial guarantees).<br><br />
<br />
Failing to properly notify the accused, not allowing them to present a defense, or conducting a trial in an unconstitutional manner, can lead to nullity.<br><br />
<br />
If the court lacks the legal authority (jurisdiction) to hear a case, any proceedings conducted by that court are null and void.<br />
<br><br><br />
'''Contempt:'''<br><br />
In case of contempt of the court (noncompliance with the court's order), the judge may for the first time add up to a half of the period set forth in the writ to the term of the postponement or enter a conviction sentence (Article 44 of Islamic Penal Code)<br><br />
<br />
Should a convict, whose punishment has reprieved, be in contempt of the court by not complying with the court orders, without plausible excuse, the court entering the final sentence may, at the request of the public prosecutor or sentence enforcement judge, add to the period of reprieve one to two years, for the first time, or revoke the stay of execution writ. Contempt of the court (noncompliance with the court order) for the second time will result in setting aside the stay of execution writ and enforcement of punishment (Article 50 Islamic Penal Code)<br />
<br><br><br />
'''Civil Actions:'''<br><br />
The incarceration alternatives constitute probation period, unpaid public services, pecuniary penalty, daily pecuniary penalty and civil disability, which will be determined and enforced in case of remission by the complainant and existence of extenuating circumstances (Article 53 Islamic Penal Code)<br><br />
<br />
There shall be no civil liability in the instances where perpetration of felony is not attributed to the action of any person, such as when it occurs out of natural disaster causes (Article 500 Islamic Penal Code)<br />
<br><br><br />
<br />
==Pre-trial Procedures==<br />
<br />
'''Initiation of proceedings:'''<br><br />
Cases can be initiated through prosecutorial or investigatory action by judicial authorities in performing legal duties such as summoning, arresting, interrogating.<br><br />
<br />
Complaints for certain forgettable ta'zir offenses must be made within one year from when the victim becomes aware of the offense.<br />
<br><br><br />
'''Arrest, Search and Seizure Laws:'''<br><br />
Limited information on stop-and-frisk<br><br />
<br />
Arrests can only be made with warrants. Detaining individuals without proper authority can mean 1-3 years imprisonment or fines.<br><br />
<br />
Pre-trial detention is counted towards the sentence. There are cases marked by allegations of torture and due process violations, and lack of access to lawyer.<br><br />
<br />
Procurators may supervise private bank accounts with approval of the head of the judicial district (lowered from provincial approval requirements). Once imprisoned, inmates are thoroughly searched, particularly for drugs, with body scanners and strip searches conducted.<br><br />
<br />
No specific lineup procedures.<br />
<br><br><br />
'''Interrogation:'''<br><br />
Prosecution or interrogation action is a measure taken by judicial authorities in carrying out a legally provided function such as summoning, arresting, interrogating, hearing witnesses and informants statements, making offense scene investigations or inspection and letters rogatory (Article 105 Islamic Penal Code).<br><br />
<br />
Generally conducted under the supervision of a prosecutor and other judicial authority.<br><br />
<br />
Investigators can gather evidence, question witnesses, and take other actions to uncover a crime. No torture allowed.<br><br><br />
During interrogation, accused have the right to silence and have an advocate.<br />
<br><br><br />
<br />
==Court Procedures==<br />
<br />
'''Pre-trial: Preliminary investigation:'''<br><br />
“Preliminary investigation” is the collection of investigative actions taken for the purpose of discovery of the crime, preserving the evidence of the commission of crime, as well as pursuing the accused from the issuance of the warrant order until his submission to judicial officials. These are usually confidential and in writing. This process aims to collect the reasons and documents of the crime, prevent the flight or conspiring of the accused and the issuance of a preliminary judicial opinion on the guilt or innocence of the accused. (Article 19 of Code of Criminal Procedure)<br><br />
<br />
The case investigator can only start a “preliminary investigation” for collecting evidence of a crime and issuing a judicial opinion if he is given permission to do so. (conditions outlined in section d, article 3 of the Law of Formation of the General and Revolutionary Courts)<br><br />
<br />
The formal charges would create cases, which proceed through prosecution court. Murder and rape charges tried by Criminal Courts, while security-related charges, corruption, and drug trafficking processed by Revolutionary Courts.<br><br />
<br />
Prosecution court issues summons to defendant explaining charges and attendance date/time, usually followed by "temporary arrest" proceedings<br />
<br><br><br />
'''Temporary detention:'''<br><br />
Usually, the accused is summoned or placed in detention. However, they do have specific rights that security officers must respect.<br><br />
<br />
Arbitrary detention of individuals is forbidden, according to article 5 of the citizenship law passed in May of 2004. Officials must also provide the family of the detainee with information. If the accused is not arrested by the order and demand of a judicial official, they cannot be kept in prison for more than 24 hours without an investigation order being issued (Article 123 of the Criminal Code of Procedure). Temporary detention orders can only be issued for specific cases including murder, kidnapping, spilling acid on someone, or possibility of feeling (Articles 35 and 132 of Iranian Criminal Code of Procedure). If issued, they cannot be held for more than two months based on the majority of charges and four months for very specific charges (Article 3 of law of the Formation of the Public and Revolutionary Courts). In political/press related charges, the investigator on the case has the authority to keep the accused in the detention center of the Ministry of Intelligence for up to four months (Article 20 of the Law of the Formation of the Public and Revolutionary Courts).<br />
<br><br><br />
'''Interrogation:'''<br><br />
The nature of their crime and connection with international human rights organizations can influence the interrogation team’s behavior.<br><br />
<br />
Cases of solitary confinement, lack of access to hygienic services, use of blindfolds, inappropriate behavior of interrogation teams, bans on fresh air, and refusal to allow phone conversations reflect the use of psychological torture in Iranian prisons.<br />
<br><br><br />
<br />
==Trial==<br />
<br />
'''Nature of the Trial:'''<br><br />
All cases are tried in a specific court depending on the nature of the accusation, the location of the commission of the alleged crime, and the characteristics of the accused.<br><br />
<br />
Article 168 of the Iranian constitution states that political crimes must be tried in an “open” and “public court” in the presence of a “jury.” Authorities can use the absence of “political crime” as an excuse to deny defendants of a public trial.<br><br />
<br />
Article 5 of the Law of Formation of Public and Revolutionary courts says that political prisoners are tried in “revolutionary court” without jury. Court sessions typically last a few minutes long. Heads ask questions about name, personal identification, and statement of charges as formalities.<br><br><br />
'''Defendant:'''<br><br />
Protected if a defense attorney is present.<br><br><br />
'''Lawyers:'''<br><br />
At the court's beginning, the prosecutor representative must read the indictment of the accused and defend its content. In political/press related cases, a representative of the prosecutor is usually an intelligence employee of the revolutionary prosecution office who may have played a role in the interrogation of the accused during the preliminary investigation.<br><br />
<br />
Defense attorneys can defend their clients both verbally and in writing.<br><br><br />
'''Expert Witnesses:'''<br><br />
Where a witness does not have the requisite conditions prescribed by the divine law, her/his statements will be heard. It is for the court to determine the extent of effect and value of those statements as judicial presumption on the judge’s knowledge of facts (Article 176 of Islamic Penal Code)<br><br />
<br />
Under divine law, a witness must have the following conditions (Article 177 Constitution):<br><br />
* Maturity; Sanity; Faithfulness; Virtuousness; Legitimacy by birth; Lack of interest in the subject matter of testimony; Lack of hostility against the parties or either party; Non-engagement in beggary; Not being a vagabond.<br><br />
<br />
Where a witness was a discerning minor when witnessing the facts subject matter of testimony, but reaches the full age at the time of giving evidence, her/his testimony shall be valid (Article 179)<br><br />
<br />
Contradictory witness testimony will be considered invalid (Article 182)<br><br />
<br />
If witness cannot be present in person, evidence shall be valid in writing, live audio-video and/or recorded forms, upon establishing that the requisites are met, and that the attribution is verified (Article 186)<br><br />
<br />
Challenge of a witness constitutes asseveration regarding lack of one of the qualification requisites prescribed by the divine law for a witness; and verification means giving evidence confirming that the qualification requisites laid down by the divine law for a witness are met (Article 191).<br><br><br />
'''Judges:'''<br><br />
Court verdict must be well-founded and documented. The judge must mention both the basis of his reasoning as well as the legal scripture and articles on which his sentence is based when issuing his opinion (Article 166 of the Constitution and Article 9 of the Law of Formation of the Public and Revolutionary Court).<br><br><br />
'''Victims:'''<br><br />
Where there is a number of victims of an offense, prosecution will commence upon lodging a complaint by each of them, but abatement of prosecution and proceeding, and reprieve of execution of punishment shall be subject to remission by all complainants (Article 102 Islamic Penal Code)<br><br />
<br />
Should the victim of the offense fail to complain within the period of one year from the date he or she became aware of perpetration of the offense, he or she will lose the right to lodge a criminal complaint (Article 102 Islamic Penal Code)<br><br><br />
<br />
Victims have the following rights within the criminal justice system:<br><br />
<li>May submit certified copies or images of evidence to the prosecutor to be included in the case file.<br><br />
<li>Can file civil claims for damages in court before trial concludes.<br><br />
<li>To be heard and participate in judicial proceedings, though no control over the outcome of the case.<br><br />
<li>Seek compensation, influence the prosecution of the offender.<br><br />
<li>Seek solutions that are more restorative than retaliatory.<br><br><br />
<br />
==Sentencing==<br />
<br />
The report is signed by the accused and attorney at the end of the court session. The judge must issue a verdict within a week’s time (Article 17 of the Law of Formation of Public and Revolutionary Courts).<br><br />
<br />
In practice, suspending the investigation of political/press related cases is a matter of security in the hands of the administration. It can put the individual in a passive position, unable to take decisive actions.<br><br />
<br />
A court verdict must be officially handed down to the accused and/or his attorneys. The handing down of the verdict is an important matter, because it determines the limited period for appealing the verdict.<br><br />
<br />
Exception: for political/press related cases, a verdict is not handed down because authorities fear anti-human rights retribution.<br />
<br><br><br />
<br />
==Appeals:==<br />
<br />
The intention of the accused in requesting an appeal of his sentence stems from his belief that the initial sentence is unnecessarily high. However, in the framework of the Iranian criminal system, appealing an initial sentence may potentially increase its length. According to Shi’a jurisprudence governing Iran’s criminal justice system, if the first verdict is not in accordance with the teachings of Sharia law, a harsher punishment may be issued by the appeal court.<br><br />
<br />
If an individual wants to appeal their temporary detention status, they must submit the request to the Court of Appeal of that province within 10 days. If the court finds the objection valid, it will cancel the decision for temporary detention. (Article 33 of Criminal Procedure Code).<br><br />
<br />
The deadline for requesting an appeal for people residing in Iran is 20 days, and for people residing out of the country, they have 2 months after the date of notification or the running of the time in which s/he can appeal (Article 236 of Criminal Procedure Code).<br><br />
<br />
Appellate courts generally summon the accused to a hearing before issuing a decision.<br><br><br />
'''Reasons for appeal (Article 240 of Criminal Procedure Code):'''<br><br />
<li>Claiming that the documents referred to by the court were invalid, or the lack of legality in the testimonies of the witnesses, or there were false statements made by the witnesses.<br><br />
<li>Claiming that the sentence is against the law.<br><br />
<li>Claiming that the judge did not pay attention to the expressed reasons.<br><br />
<li>Claiming the judge or issuing court is incompetent<br><br><br />
'''Right to Counsel:'''<br><br />
Guaranteed by Iranian Constitution<br><br />
<br />
Under new Criminal Procedure Code, lawyers must be pre-approved by the Head of the Judiciary for security related cases<br><br><br />
'''Ineffective Assistance of Counsel:'''<br><br />
Restrictions surrounding the security cases prevent lawyers from accessing case files and the accused during investigation. This can last for weeks or even months. There are also cases where lawyers are denied attendance at the hearing session, and prosecuted for taking on politically sensitive cases.<br><br />
<br />
Lawyers lack independence, since the judiciary system can label some as more trustworthy than others for security cases.<br><br><br />
'''Other Grounds for Appeal:'''<br><br />
The sentences issued by Public and Revolutionary Courts on Criminal Affairs are definite and can be appealed only in the following cases:<br><br />
<li>Crimes for which the legal punishment is execution or stoning.<br><br />
<li>Crimes subject to a fixed penalty or retribution and similar instances.<br><br />
<li>Confiscation of properties valued more than Rials 1,000,000 (about US$ 1,000).<br><br />
<li>Crimes for which the sentence is to pay blood money in an amount more than one fifth of complete blood money.<br><br />
<li>Crimes for which the maximum legal punishment is more than three months, imprisonment or whipping or fines more than Rials 500,000 (about US$ 500).<br><br />
<li>Sentences of dismissal from service.<br><br><br />
'''Collateral Remedies (Habeas etc…):'''<br><br />
The government has an obligation to compensate the defendant for damages and offset the losses of innocent accused. However, there is a lack of compensation for unjustified detention (Penal Code of 2014).<br />
<br><br><br />
<br />
==Rights in Prison==<br />
<br />
'''Right to Humane Conditions of Confinement:'''<br><br />
Basic necessities outlined in the Constitution for all citizens include: housing, food, clothing, hygiene, medical treatment, education, and the necessary facilities for the establishment of a family.<br />
<br><br><br />
'''Immigrant’s Rights in Detention:'''<br><br />
Studies show that immigrant defendants living in Iran, including Afghans, Pakistanis, Indians, Arabs and Tanzanians, experience significant obstacles in the criminal process. There is a lack of laws and provisions assigned for immigrants in different stages of proceedings.<br />
<br><br><br />
'''Right to Medical Care in Prison:'''<br><br />
The judge may consider the defendant’s medical services to suspend performance of public service temporarily, or propose an alternative punishment to the sentence issued in court (Islamic Penal Code Article 84).<br><br />
If a physician causes death/body injury while treating the defendant, they would be liable to pay wergild (Islamic Penal Code Article 495).<br><br />
Amnesty International issued a report documenting the denial of medical care in Iran’s prisons. The report details denial of specialized medical care outside prison, intentional interruption or discontinuation of treatments, denial of release on medical grounds, withholding medication, and gender-specific abuses.<br />
<br><br><br />
'''Right to Mental Health Care:'''<br><br />
At present, Iran has no laws that specifically address mental health. However, the civil law, the Islamic penal code, a jurisdiction act, a set of safeguarding measures from 1960, family protection law and a law permitting payment of wages to psychiatric patients do help to protect different aspects of the rights of psychiatric patients.<br />
<br><br><br />
'''Rights of Special Populations:'''<br><br />
<li>'''LGBTQ Prisoners'''<br><br />
* Iran Human Rights considers the Islamic Penal Code to be the main cause of violence against the LGBT community because it sets flogging and the death penalty for homosexual relations. Fixed punishment is set for sodomy, where the “active” party will be sentenced to death if they used force or rape. The “passive” party will be sentenced to death regardless of marital status (Article 234 Islamic Penal Code)<br><br />
<li>'''Mentally Ill Prisoners'''<br><br />
* Where at the time of committing an offense the perpetrator suffered from mental disorder in such manner that he or she lacked the volition and power of discernment, he or she will be deemed insane, and shall have no criminal liability (Islamic Penal Code Article 149)<br><br />
<li>'''Juveniles'''<br><br />
* If the minor commits the offense at age 9-15 years, the court will make one of the decisions:<br><br />
** Hand over to the parents or guardians and asking them to chastise/train the minor to adopt good conduct<br><br />
* If the minor was of age 15-18, the following punishments will be executed:<br><br />
**Detention in the reformatory for the period of two to five years in respect of the offenses the statutorily prescribed punishments of which are the first to the fifth degree discretionary punishments<br><br />
**Detention in the reformatory for the period of one to three year(s) in respect of the offenses the statutorily prescribed punishment of which is the fourth degree discretionary punishment<br><br />
**Detention in the reformatory for the period of three months to one year, or pecuniary penalty from ten million (10,000,000) Rials to forty million (40,000,000) Rials, or performance of one hundred and eighty to seven hundred and twenty hours of unpaid public services in respect of the offenses the statutorily prescribed punishments of which is the fifth degree discretionary punishment<br><br />
**Payment of pecuniary penalty from one million (1,000,000) Rials to ten million (10,000,000) Rials, or performance of sixty to one hundred and eighty hours of unpaid public services in respect of the offenses the statutorily prescribed punishments of which is the sixth degree discretionary punishment<br><br />
**Payment of pecuniary penalty up to one million (1,000,000) Rials in respect of the offenses the statutorily prescribed punishments of which are the seventh degree and eighth degree discretionary punishments.<br><br />
*Criminal convictions of minors and juveniles create no criminal records (Article 95 Islamic Penal Code)<br />
<br><br><br />
<br />
==Resources==<br />
- "Law of the Formation of the Public and Revolutionary Courts", legal-tools.org (2009), https://www.legal-tools.org/doc/f9f706/pdf/<br />
<br />
- "The Islamic Penal Code of Iran", Iran Human Rights Documentation Center (2014), https://iranhrdc.org/wp-content/uploads/pdf_en/Iranian_Codes/Iran_Criminal_Code_English_143233623.pdf<br />
<br />
- "Islamic Penal Code", UNODC SHERLOC (2013), https://sherloc.unodc.org/cld/uploads/res/islamic-penal-code_html/Islamic_Penal_Code.pdf<br />
<br />
- "Administration of criminal justice in Iran", Cambridge University Press (2020), https://www.cambridge.org/core/books/abs/rule-of-law-in-the-islamic-republic-of-iran/administration-of-criminal-justice-in-iran/6E3EBEB82AEAEA21BE1A1C93E7661AA7<br />
<br />
- "Criminal Procedure Law of Iran", Iran Best Lawyer (n.d.), https://www.iranbestlawyer.com/criminal-procedure-law-of-iran/#:~:text=Article%2015,adherence%20to%20civil%20procedure%20formalities<br />
<br />
- "The Iranian Mental Health Act", US National Library of Medicine (2017), https://pmc.ncbi.nlm.nih.gov/articles/PMC5618927/<br />
<br />
- "LGBT-Phobia and the Cruelty of the Islamic Penal Code in Iran", Iran Human Rights (2022), https://iranhr.net/en/articles/4735/<br />
<br />
- "Health taken hostage: Cruel denial of medical care in Iran's prisons", Amnesty International (2016), https://www.amnesty.org/ar/wp-content/uploads/2021/05/MDE1341962016ENGLISH.pdf<br />
<br />
- "Barriers to Immigrant Defendants' Access to Justice during the Prosecution Phase in Iranian Criminal Justice System", ResearchGate (2024), https://www.researchgate.net/publication/389174119_Barriers_to_Immigrant_Defendants'_Access_to_Justice_during_the_Prosecution_Phase_in_Iranian_Criminal_Justice_System<br />
<br />
- "The Right of the Accused to Compensation in the Iranian Criminal Justice System", ResearchGate (2018), https://www.researchgate.net/publication/324730064_The_Right_of_the_Accused_to_Compensation_in_the_Iranian_Criminal_Justice_System#:~:text=In%20the%20Iranian%20criminal%20justice%20system%2C%20the%20right%20to%20compensation,will%20explain%20the%20various<br />
<br />
- "You have the right to an attorney… that we approve of: Right to Counsel under Iran’s new Criminal Procedure Code", Oxford Human Rights Hub (2015), https://ohrh.law.ox.ac.uk/you-have-the-right-to-an-attorney-that-we-approve-of-right-to-counsel-under-irans-new-criminal-procedure-code-2/<br />
<br />
- "Capital punishment in Iran", Wikipedia (2024), https://en.wikipedia.org/wiki/Capital_punishment_in_Iran<br />
<br />
- "Iran: New compulsory veiling law intensifies oppression of women and girls", Amnesty International (2024), https://www.amnesty.org/en/latest/news/2024/12/iran-new-compulsory-veiling-law-intensifies-oppression-of-women-and-girls/<br />
<br />
- "Law of the Formation of Public and Revolutionary Courts (2009)", Refworld (2013), https://www.refworld.org/docid/518a19404.html<br />
<br />
- "Codifying Repression: An Assessment of Iran's New Penal Code", Human Rights Watch (2012), https://www.hrw.org/report/2012/08/28/codifying-repression/assessment-irans-new-penal-code<br />
<br />
- "Justice for Iran", justice4iran.org (2024), https://justice4iran.org/<br />
<br />
- "Iran: New compulsory veiling law intensifies oppression of women and girls", Amnesty International (2024), https://www.amnesty.org/en/latest/news/2024/12/iran-new-compulsory-veiling-law-intensifies-oppression-of-women-and-girls/<br />
<br />
- "Islamic Penal Code", UNODC SHERLOC (2013), https://sherloc.unodc.org/cld/uploads/res/islamic-penal-code_html/Islamic_Penal_Code.pdf<br />
<br />
- "The Rule of Law in the Islamic Republic of Iran", University of Essex (2010), https://www1.essex.ac.uk/hri/documents/rule-of-law-in-iran.pdf#:~:text=The%20relevant%20treaty%20to%20which%20Iran%20is,and%20freedom%20of%20association%20under%20Article%2022.&text=This%20is%20a%20clear%20interference%20by%20the%20executive%20in%20judicial%20affairs<br />
<br />
- "Legal Support", UNHCR Iran (2024), https://www.unhcr.org/ir/legal-support<br />
<br />
- "Effectiveness of Legal Aid for Suspects or Defendants in the Iranian Criminal Justice System", International Journal of Educational and Vocational Social Science (2022), https://e-journal.citakonsultindo.or.id/index.php/IJEVSS/article/download/301/304/<br />
<br />
- "Iranian Lawyers: Judiciary’s Mandatory List of “Approved” Counsel Sets “Dangerous Precedent”", Iran Human Rights (2018), https://iranhumanrights.org/2018/03/iranian-lawyers-judiciarys-mandatory-list-of-approved-counsel-sets-dangerous-precedent/<br />
<br />
- "Effectiveness of Legal Aid for Suspects or Defendants in the Iranian Criminal Justice System", International Journal of Educational and Vocational Social Science (2022), https://e-journal.citakonsultindo.or.id/index.php/IJEVSS/article/download/301/304/#:~:text=However%2C%20the%20availability%20of%20legal%20aid%20is,support%2C%20exacerbating%20imbalances%20in%20the%20judicial%20process</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Iran&diff=381662Iran2025-07-15T10:30:14Z<p>IBJadmin: </p>
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* Constitution of the Islamic Republic of Iran <ref>https://web.archive.org/web/20161027004409/https://en.parliran.ir/eng/en/Constitution</ref><br />
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<br />
==Background==<br />
<br />
Iran executed at least 975 people in 2024, the highest number since 2015, with serious due process violations including lack of access to lawyers. The key challenge remains that Iran is intensifying its crackdown on human rights lawyers, targeting those who defend protesters and dissidents. <br />
<br />
<br><br />
<br />
==The Legal system==<br />
<br />
Iran operates under a hybrid system combining Islamic law (Sharia) with civil law traditions, heavily influenced by the 1979 Islamic Revolution<br />
<br />
In accordance with the Islamic Penal Code, any act or failure to act for which a punishment has been designated in the laws is a crime. Also, according to Article 2 of the Code of Criminal Procedure, all crimes have a divine aspect. All individuals who have reached the age of maturity designated in Sharia law have complete criminal responsibility and in the case of commission of a crime, will be pursued and punished accordingly. Boys are deemed mature by 15 lunar years and girls 9 lunar years. If a mature person commits a crime, they will be tried based on the Code of Criminal Procedure of the Islamic Republic of Iran. <br />
<br />
<br />
<br />
==Legal Aid==<br />
<br />
'''State-sponsored legal aid''': While the right to counsel is established, the practical availability of free or subsidized legal aid can be limited due to factors like insufficient funding, lack of awareness, and inadequate outreach efforts. <br />
<br />
'''Existing NGOs providing pro bono legal aid'''<br />
<ul><li>UNHCR Iran operates a Legal Services Project with the objective of providing legal assistance to refugees in Iran and resolving disputes through alternative dispute resolution mechanisms.<br />
<li>Iranian Bar Associations Union <br />
<li>Defenders of Human Rights Center (DHRC)<br />
<li>Islamic Human Rights Commission<br />
</li></ul><br />
<br />
'''Number of lawyers''': The Iranian Bar Association is estimated to have around 60,000 members. Detailed breakdown between criminal and civil lawyers is unknown. <br />
<br />
'''Human Rights Organizations'''<br />
<br />
Iran Human Rights (IHR): This non-profit, independent organization focuses on building a strong civil society by empowering citizens and promoting human rights as defined by the Universal Declaration of Human Rights. IHR is particularly known for its work on abolishing the death penalty in Iran and monitoring human rights abuses. <br />
<br />
Center for Human Rights in Iran (CHRI):<br />
Formerly known as the International Campaign for Human Rights in Iran, CHRI is an American non-governmental organization dedicated to promoting human rights in Iran. <br />
<br />
Defenders of Human Rights Center (DHRC):<br />
Founded in 2001, the DHRC advocates for the rights of women, political prisoners, and minorities in Iran. Its president is Nobel Peace Prize laureate Shirin Ebadi. <br />
<br />
Human Rights Activists in Iran (HRAI):<br />
This non-political and non-governmental organization aims to promote, safeguard, and sustain human rights in Iran. HRAI monitors human rights violations, disseminates information, and advocates for various human rights, including freedom of speech, association, and press. <br />
<br />
Impact Iran:<br />
A coalition of 19 non-governmental organizations, Impact Iran works to advocate for human rights and drive positive change in Iran by amplifying the voices of Iranian civil society. <br />
<br />
Ahwaz Human Rights Organization:<br />
This NGO focuses on defending the human rights of the Ahwazi Arab minority in Iran. <br />
<br><br />
<br />
<br />
==Source of Defendants Rights==<br />
'''National Sources of Defendant’s Rights'''<br />
<br />
<li>Iranian Constitution<br />
<br />
* Article 32 states that no person may be arrested except according to and in the manner laid down in the law. If someone is detained, the subject matter of the charge, with reasons (for bringing it), must immediately be communicated and explained in writing to the accused. Within at most 24 hours the file on the case and preliminary documentation must be referred to the competent legal authority. <br />
<br />
* Article 34 states that everyone may refer to the competent courts in search of justice. <br />
<br />
* Article 35 of the Iranian Constitution explicitly states that both parties in a lawsuit have the right to select an attorney, and if they cannot afford one, arrangements must be made to provide legal counsel according to the Center for Human Rights in Iran. <br />
<br />
* Article 36 says that a sentence to punishment and its execution must only be by the decision of a competent court, and by virtue of law.<br />
<br />
* Article 37 says that innocence is the basic principle. No person is considered legally guilty, except in cases where his guilt is established in a competent court.<br />
<br />
* Article 38 prevents use of torture to obtain information. <br />
<br />
* Article 39 protects the arrested person’s dignity and respect.<br />
<br />
<li>Citizenship Rights Law (2004)<br />
<br />
<li>Islamic Penal Code (2013)<br />
<br />
<li>Code of Criminal Procedure of Iran (1999)<br />
<br><br><br />
'''International Sources of defendant’s rights'''<br />
<li>International Covenant on Civil and Political Rights (ICCPR). This treaty, which Iran is a party to, includes guarantees of a fair trial, freedom of expression, and freedom of association.<br />
* Article 14: Guarantees the right to a fair trial and due process of law. <br />
* Article 19: Protects freedom of expression. <br />
* Article 22: Protects freedom of association. <br />
<br />
<li>Iran has signed but not ratified CAT (Convention Against Torture) <br />
<br><br><br />
<br />
==Rights of the Accused==<br />
<br />
'''Presumption of innocence:'''<br />
<br />
Article 37 of the Iranian Constitution says that innocence is the basic principle. No person is considered legally guilty, except in cases where his guilt is established in a competent court. <br />
<br />
'''Right to defense:'''<br />
Article 3 of the “Citizenship Rights Law” (2004) clearly required courts and prosecution offices to respect the right of the accused to a defense and to provide the accused with the services of a defense attorney. <br />
<br />
'''Right to counsel:'''<br />
Article 35 of the Iranian Constitution explicitly states that both parties in a lawsuit have the right to select an attorney, and if they cannot afford one, arrangements must be made to provide legal counsel according to the Center for Human Rights in Iran. Article 185 of the Islamic Penal Code protects rights to an attorney. <br />
<br />
'''Right to a fair trial:'''<br />
Article 34 Constitution states that everyone may refer to the competent courts in search of justice. <br />
Article 36 Constitution says that a sentence to punishment and its execution must only be by the decision of a competent court, and by virtue of law.<br />
Judges are appointed based on ideology rather than legal training.<br />
<br />
'''Temporary detention (only with evidence):'''<br />
Article 5 of the “Citizenship Rights Law” (2004) forbids arbitrary detention of individuals. Officials must also provide the family of the detainee with information. <br />
<br />
'''Confession without coercion:''' <br />
Article 37 Constitution prevents use of torture to obtain information. <br />
Article 169 Islamic Penal Code: Any confession made under duress, coercion, torture, and/or mental or physical harassment and molestation shall have no value and credit; and the court shall interrogate the accused, again. <br />
<br />
'''Qesās (Retaliation):''' retribution where victim or family members can demand similar punishments <br />
<br />
'''Civil rights upheld:'''<br />
Article 39 Constitution protects the arrested person’s dignity and respect.<br />
Right Against Unlawful Arrests, Searches, Seizures, and Unlawful Detention <br />
Article 32 Constitution states that no person may be arrested except according to and in the manner laid down in the law. If someone is detained, the subject matter of the charge, with reasons (for bringing it), must immediately be communicated and explained in writing to the accused. Within at most 24 hours the file on the case and preliminary documentation must be referred to the competent legal authority. <br />
<br />
'''Right Not to be Tortured or Ill-Treated:'''<br />
Article 37 Constitution prevents use of torture to obtain information. <br />
<br />
'''Right to Medical Care:'''<br />
Article 495 of the Iranian Penal Code states that a physician is responsible for "diyah" (blood money) if their treatment results in harm to a patient, unless the treatment was medically and technically sound and the physician was not at fault, according to the International Academic Institute for Science and Technology.<br />
<br />
<br><br />
<br />
==Rights of Counsel==<br />
<br />
'''Right to Provide Representation:''' Guaranteed by article 35 of the Constitution.<br />
<br />
'''Right of Access to the Client:''' Investigators can block the presence of trial attorneys during interrogations, according to Article 128 of the Code of Criminal Procedure (1999). Some also use the note under this article to refuse to accept a retainer letter from an attorney.<br />
<br />
'''Right to Information:''' Trial attorneys are at times unable to accompany their clients through the criminal investigation of their case, and also not able to read the case and prepare motions and defenses on their behalf.<br />
<br />
'''Right to Confidential Communication with the Client:''' Investigators can refuse to accept a retainer letter from an attorney, thereby denying confidential communications.<br />
<br><br />
<br />
<br />
==Means of Protecting or Enforcing Rights==<br />
<br />
'''Exclusionary Rule:'''<br><br />
While Iran does not have explicit exclusionary rule that automatically excludes any evidence obtained illegally, there exists protection against using coercion and torture for extracting confession or information (Article 38 of Iranian Constitution).<br />
<br><br><br />
'''Nullity of Procedure:'''<br><br />
Nullity can occur when a court's actions or decisions contravene established legal principles, such as the principle of legality (crimes and punishments must be defined by law) or the principle of due process (fair trial guarantees).<br><br />
<br />
Failing to properly notify the accused, not allowing them to present a defense, or conducting a trial in an unconstitutional manner, can lead to nullity.<br><br />
<br />
If the court lacks the legal authority (jurisdiction) to hear a case, any proceedings conducted by that court are null and void.<br />
<br><br><br />
'''Contempt:'''<br><br />
In case of contempt of the court (noncompliance with the court's order), the judge may for the first time add up to a half of the period set forth in the writ to the term of the postponement or enter a conviction sentence (Article 44 of Islamic Penal Code)<br><br />
<br />
Should a convict, whose punishment has reprieved, be in contempt of the court by not complying with the court orders, without plausible excuse, the court entering the final sentence may, at the request of the public prosecutor or sentence enforcement judge, add to the period of reprieve one to two years, for the first time, or revoke the stay of execution writ. Contempt of the court (noncompliance with the court order) for the second time will result in setting aside the stay of execution writ and enforcement of punishment (Article 50 Islamic Penal Code)<br />
<br><br><br />
'''Civil Actions:'''<br><br />
The incarceration alternatives constitute probation period, unpaid public services, pecuniary penalty, daily pecuniary penalty and civil disability, which will be determined and enforced in case of remission by the complainant and existence of extenuating circumstances (Article 53 Islamic Penal Code)<br><br />
<br />
There shall be no civil liability in the instances where perpetration of felony is not attributed to the action of any person, such as when it occurs out of natural disaster causes (Article 500 Islamic Penal Code)<br />
<br><br><br />
<br />
==Pre-trial Procedures==<br />
<br />
'''Initiation of proceedings:'''<br><br />
Cases can be initiated through prosecutorial or investigatory action by judicial authorities in performing legal duties such as summoning, arresting, interrogating.<br><br />
<br />
Complaints for certain forgettable ta'zir offenses must be made within one year from when the victim becomes aware of the offense.<br />
<br><br><br />
'''Arrest, Search and Seizure Laws:'''<br><br />
Limited information on stop-and-frisk<br><br />
<br />
Arrests can only be made with warrants. Detaining individuals without proper authority can mean 1-3 years imprisonment or fines.<br><br />
<br />
Pre-trial detention is counted towards the sentence. There are cases marked by allegations of torture and due process violations, and lack of access to lawyer.<br><br />
<br />
Procurators may supervise private bank accounts with approval of the head of the judicial district (lowered from provincial approval requirements). Once imprisoned, inmates are thoroughly searched, particularly for drugs, with body scanners and strip searches conducted.<br><br />
<br />
No specific lineup procedures.<br />
<br><br><br />
'''Interrogation:'''<br><br />
Prosecution or interrogation action is a measure taken by judicial authorities in carrying out a legally provided function such as summoning, arresting, interrogating, hearing witnesses and informants statements, making offense scene investigations or inspection and letters rogatory (Article 105 Islamic Penal Code).<br><br />
<br />
Generally conducted under the supervision of a prosecutor and other judicial authority.<br><br />
<br />
Investigators can gather evidence, question witnesses, and take other actions to uncover a crime. No torture allowed.<br><br><br />
During interrogation, accused have the right to silence and have an advocate.<br />
<br><br><br />
<br />
==Court Procedures==<br />
<br />
'''Pre-trial: Preliminary investigation:'''<br><br />
“Preliminary investigation” is the collection of investigative actions taken for the purpose of discovery of the crime, preserving the evidence of the commission of crime, as well as pursuing the accused from the issuance of the warrant order until his submission to judicial officials. These are usually confidential and in writing. This process aims to collect the reasons and documents of the crime, prevent the flight or conspiring of the accused and the issuance of a preliminary judicial opinion on the guilt or innocence of the accused. (Article 19 of Code of Criminal Procedure)<br><br />
<br />
The case investigator can only start a “preliminary investigation” for collecting evidence of a crime and issuing a judicial opinion if he is given permission to do so. (conditions outlined in section d, article 3 of the Law of Formation of the General and Revolutionary Courts)<br><br />
<br />
The formal charges would create cases, which proceed through prosecution court. Murder and rape charges tried by Criminal Courts, while security-related charges, corruption, and drug trafficking processed by Revolutionary Courts.<br><br />
<br />
Prosecution court issues summons to defendant explaining charges and attendance date/time, usually followed by "temporary arrest" proceedings<br />
<br><br><br />
'''Temporary detention:'''<br><br />
Usually, the accused is summoned or placed in detention. However, they do have specific rights that security officers must respect.<br><br />
<br />
Arbitrary detention of individuals is forbidden, according to article 5 of the citizenship law passed in May of 2004. Officials must also provide the family of the detainee with information. If the accused is not arrested by the order and demand of a judicial official, they cannot be kept in prison for more than 24 hours without an investigation order being issued (Article 123 of the Criminal Code of Procedure). Temporary detention orders can only be issued for specific cases including murder, kidnapping, spilling acid on someone, or possibility of feeling (Articles 35 and 132 of Iranian Criminal Code of Procedure). If issued, they cannot be held for more than two months based on the majority of charges and four months for very specific charges (Article 3 of law of the Formation of the Public and Revolutionary Courts). In political/press related charges, the investigator on the case has the authority to keep the accused in the detention center of the Ministry of Intelligence for up to four months (Article 20 of the Law of the Formation of the Public and Revolutionary Courts).<br />
<br><br><br />
'''Interrogation:'''<br><br />
The nature of their crime and connection with international human rights organizations can influence the interrogation team’s behavior.<br><br />
<br />
Cases of solitary confinement, lack of access to hygienic services, use of blindfolds, inappropriate behavior of interrogation teams, bans on fresh air, and refusal to allow phone conversations reflect the use of psychological torture in Iranian prisons.<br />
<br><br><br />
<br />
==Trial==<br />
<br />
'''Nature of the Trial:'''<br><br />
All cases are tried in a specific court depending on the nature of the accusation, the location of the commission of the alleged crime, and the characteristics of the accused.<br><br />
<br />
Article 168 of the Iranian constitution states that political crimes must be tried in an “open” and “public court” in the presence of a “jury.” Authorities can use the absence of “political crime” as an excuse to deny defendants of a public trial.<br><br />
<br />
Article 5 of the Law of Formation of Public and Revolutionary courts says that political prisoners are tried in “revolutionary court” without jury. Court sessions typically last a few minutes long. Heads ask questions about name, personal identification, and statement of charges as formalities.<br><br><br />
'''Defendant:'''<br><br />
Protected if a defense attorney is present.<br><br><br />
'''Lawyers:'''<br><br />
At the court's beginning, the prosecutor representative must read the indictment of the accused and defend its content. In political/press related cases, a representative of the prosecutor is usually an intelligence employee of the revolutionary prosecution office who may have played a role in the interrogation of the accused during the preliminary investigation.<br><br />
<br />
Defense attorneys can defend their clients both verbally and in writing.<br><br><br />
'''Expert Witnesses:'''<br><br />
Where a witness does not have the requisite conditions prescribed by the divine law, her/his statements will be heard. It is for the court to determine the extent of effect and value of those statements as judicial presumption on the judge’s knowledge of facts (Article 176 of Islamic Penal Code)<br><br />
<br />
Under divine law, a witness must have the following conditions (Article 177 Constitution):<br><br />
* Maturity; Sanity; Faithfulness; Virtuousness; Legitimacy by birth; Lack of interest in the subject matter of testimony; Lack of hostility against the parties or either party; Non-engagement in beggary; Not being a vagabond.<br><br />
<br />
Where a witness was a discerning minor when witnessing the facts subject matter of testimony, but reaches the full age at the time of giving evidence, her/his testimony shall be valid (Article 179)<br><br />
<br />
Contradictory witness testimony will be considered invalid (Article 182)<br><br />
<br />
If witness cannot be present in person, evidence shall be valid in writing, live audio-video and/or recorded forms, upon establishing that the requisites are met, and that the attribution is verified (Article 186)<br><br />
<br />
Challenge of a witness constitutes asseveration regarding lack of one of the qualification requisites prescribed by the divine law for a witness; and verification means giving evidence confirming that the qualification requisites laid down by the divine law for a witness are met (Article 191).<br><br><br />
'''Judges:'''<br><br />
Court verdict must be well-founded and documented. The judge must mention both the basis of his reasoning as well as the legal scripture and articles on which his sentence is based when issuing his opinion (Article 166 of the Constitution and Article 9 of the Law of Formation of the Public and Revolutionary Court).<br><br><br />
'''Victims:'''<br><br />
Where there is a number of victims of an offense, prosecution will commence upon lodging a complaint by each of them, but abatement of prosecution and proceeding, and reprieve of execution of punishment shall be subject to remission by all complainants (Article 102 Islamic Penal Code)<br><br />
<br />
Should the victim of the offense fail to complain within the period of one year from the date he or she became aware of perpetration of the offense, he or she will lose the right to lodge a criminal complaint (Article 102 Islamic Penal Code)<br><br><br />
<br />
Victims have the following rights within the criminal justice system:<br><br />
<li>May submit certified copies or images of evidence to the prosecutor to be included in the case file.<br><br />
<li>Can file civil claims for damages in court before trial concludes.<br><br />
<li>To be heard and participate in judicial proceedings, though no control over the outcome of the case.<br><br />
<li>Seek compensation, influence the prosecution of the offender.<br><br />
<li>Seek solutions that are more restorative than retaliatory.<br><br><br />
<br />
==Sentencing==<br />
<br />
The report is signed by the accused and attorney at the end of the court session. The judge must issue a verdict within a week’s time (Article 17 of the Law of Formation of Public and Revolutionary Courts).<br><br />
<br />
In practice, suspending the investigation of political/press related cases is a matter of security in the hands of the administration. It can put the individual in a passive position, unable to take decisive actions.<br><br />
<br />
A court verdict must be officially handed down to the accused and/or his attorneys. The handing down of the verdict is an important matter, because it determines the limited period for appealing the verdict.<br><br />
<br />
Exception: for political/press related cases, a verdict is not handed down because authorities fear anti-human rights retribution.<br />
<br><br><br />
<br />
==Appeals:==<br />
<br />
The intention of the accused in requesting an appeal of his sentence stems from his belief that the initial sentence is unnecessarily high. However, in the framework of the Iranian criminal system, appealing an initial sentence may potentially increase its length. According to Shi’a jurisprudence governing Iran’s criminal justice system, if the first verdict is not in accordance with the teachings of Sharia law, a harsher punishment may be issued by the appeal court.<br><br />
<br />
If an individual wants to appeal their temporary detention status, they must submit the request to the Court of Appeal of that province within 10 days. If the court finds the objection valid, it will cancel the decision for temporary detention. (Article 33 of Criminal Procedure Code).<br><br />
<br />
The deadline for requesting an appeal for people residing in Iran is 20 days, and for people residing out of the country, they have 2 months after the date of notification or the running of the time in which s/he can appeal (Article 236 of Criminal Procedure Code).<br><br />
<br />
Appellate courts generally summon the accused to a hearing before issuing a decision.<br><br><br />
'''Reasons for appeal (Article 240 of Criminal Procedure Code):'''<br><br />
<li>Claiming that the documents referred to by the court were invalid, or the lack of legality in the testimonies of the witnesses, or there were false statements made by the witnesses.<br><br />
<li>Claiming that the sentence is against the law.<br><br />
<li>Claiming that the judge did not pay attention to the expressed reasons.<br><br />
<li>Claiming the judge or issuing court is incompetent<br><br><br />
'''Right to Counsel:'''<br><br />
Guaranteed by Iranian Constitution<br><br />
<br />
Under new Criminal Procedure Code, lawyers must be pre-approved by the Head of the Judiciary for security related cases<br><br><br />
'''Ineffective Assistance of Counsel:'''<br><br />
Restrictions surrounding the security cases prevent lawyers from accessing case files and the accused during investigation. This can last for weeks or even months. There are also cases where lawyers are denied attendance at the hearing session, and prosecuted for taking on politically sensitive cases.<br><br />
<br />
Lawyers lack independence, since the judiciary system can label some as more trustworthy than others for security cases.<br><br><br />
'''Other Grounds for Appeal:'''<br><br />
The sentences issued by Public and Revolutionary Courts on Criminal Affairs are definite and can be appealed only in the following cases:<br><br />
<li>Crimes for which the legal punishment is execution or stoning.<br><br />
<li>Crimes subject to a fixed penalty or retribution and similar instances.<br><br />
<li>Confiscation of properties valued more than Rials 1,000,000 (about US$ 1,000).<br><br />
<li>Crimes for which the sentence is to pay blood money in an amount more than one fifth of complete blood money.<br><br />
<li>Crimes for which the maximum legal punishment is more than three months, imprisonment or whipping or fines more than Rials 500,000 (about US$ 500).<br><br />
<li>Sentences of dismissal from service.<br><br><br />
'''Collateral Remedies (Habeas etc…):'''<br><br />
The government has an obligation to compensate the defendant for damages and offset the losses of innocent accused. However, there is a lack of compensation for unjustified detention (Penal Code of 2014).<br />
<br><br><br />
<br />
==Rights in Prison==<br />
<br />
'''Right to Humane Conditions of Confinement:'''<br><br />
Basic necessities outlined in the Constitution for all citizens include: housing, food, clothing, hygiene, medical treatment, education, and the necessary facilities for the establishment of a family.<br />
<br><br><br />
'''Immigrant’s Rights in Detention:'''<br><br />
Studies show that immigrant defendants living in Iran, including Afghans, Pakistanis, Indians, Arabs and Tanzanians, experience significant obstacles in the criminal process. There is a lack of laws and provisions assigned for immigrants in different stages of proceedings.<br />
<br><br><br />
'''Right to Medical Care in Prison:'''<br><br />
The judge may consider the defendant’s medical services to suspend performance of public service temporarily, or propose an alternative punishment to the sentence issued in court (Islamic Penal Code Article 84).<br><br />
If a physician causes death/body injury while treating the defendant, they would be liable to pay wergild (Islamic Penal Code Article 495).<br><br />
Amnesty International issued a report documenting the denial of medical care in Iran’s prisons. The report details denial of specialized medical care outside prison, intentional interruption or discontinuation of treatments, denial of release on medical grounds, withholding medication, and gender-specific abuses.<br />
<br><br><br />
'''Right to Mental Health Care:'''<br><br />
At present, Iran has no laws that specifically address mental health. However, the civil law, the Islamic penal code, a jurisdiction act, a set of safeguarding measures from 1960, family protection law and a law permitting payment of wages to psychiatric patients do help to protect different aspects of the rights of psychiatric patients.<br />
<br><br><br />
'''Rights of Special Populations:'''<br><br />
<li>'''Women'''<br><br />
<li>'''LGBT Prisoners'''<br><br />
* Iran Human Rights considers the Islamic Penal Code to be the main cause of violence against the LGBT community because it sets flogging and the death penalty for homosexual relations. Fixed punishment is set for sodomy, where the “active” party will be sentenced to death if they used force or rape. The “passive” party will be sentenced to death regardless of marital status (Article 234 Islamic Penal Code)<br><br />
<li>'''Mentally Ill Prisoners'''<br><br />
* Where at the time of committing an offense the perpetrator suffered from mental disorder in such manner that he or she lacked the volition and power of discernment, he or she will be deemed insane, and shall have no criminal liability (Islamic Penal Code Article 149)<br><br />
<li>'''Juveniles'''<br><br />
* If the minor commits the offense at age 9-15 years, the court will make one of the decisions:<br><br />
** Hand over to the parents or guardians and asking them to chastise/train the minor to adopt good conduct<br><br />
* If the minor was of age 15-18, the following punishments will be executed:<br><br />
**Detention in the reformatory for the period of two to five years in respect of the offenses the statutorily prescribed punishments of which are the first to the fifth degree discretionary punishments<br><br />
**Detention in the reformatory for the period of one to three year(s) in respect of the offenses the statutorily prescribed punishment of which is the fourth degree discretionary punishment<br><br />
**Detention in the reformatory for the period of three months to one year, or pecuniary penalty from ten million (10,000,000) Rials to forty million (40,000,000) Rials, or performance of one hundred and eighty to seven hundred and twenty hours of unpaid public services in respect of the offenses the statutorily prescribed punishments of which is the fifth degree discretionary punishment<br><br />
**Payment of pecuniary penalty from one million (1,000,000) Rials to ten million (10,000,000) Rials, or performance of sixty to one hundred and eighty hours of unpaid public services in respect of the offenses the statutorily prescribed punishments of which is the sixth degree discretionary punishment<br><br />
**Payment of pecuniary penalty up to one million (1,000,000) Rials in respect of the offenses the statutorily prescribed punishments of which are the seventh degree and eighth degree discretionary punishments.<br><br />
*Criminal convictions of minors and juveniles create no criminal records (Article 95 Islamic Penal Code)<br />
<br><br><br />
<br />
==Resources==<br />
- "Law of the Formation of the Public and Revolutionary Courts", legal-tools.org (2009), https://www.legal-tools.org/doc/f9f706/pdf/<br />
<br />
- "The Islamic Penal Code of Iran", Iran Human Rights Documentation Center (2014), https://iranhrdc.org/wp-content/uploads/pdf_en/Iranian_Codes/Iran_Criminal_Code_English_143233623.pdf<br />
<br />
- "Islamic Penal Code", UNODC SHERLOC (2013), https://sherloc.unodc.org/cld/uploads/res/islamic-penal-code_html/Islamic_Penal_Code.pdf<br />
<br />
- "Administration of criminal justice in Iran", Cambridge University Press (2020), https://www.cambridge.org/core/books/abs/rule-of-law-in-the-islamic-republic-of-iran/administration-of-criminal-justice-in-iran/6E3EBEB82AEAEA21BE1A1C93E7661AA7<br />
<br />
- "Criminal Procedure Law of Iran", Iran Best Lawyer (n.d.), https://www.iranbestlawyer.com/criminal-procedure-law-of-iran/#:~:text=Article%2015,adherence%20to%20civil%20procedure%20formalities<br />
<br />
- "The Iranian Mental Health Act", US National Library of Medicine (2017), https://pmc.ncbi.nlm.nih.gov/articles/PMC5618927/<br />
<br />
- "LGBT-Phobia and the Cruelty of the Islamic Penal Code in Iran", Iran Human Rights (2022), https://iranhr.net/en/articles/4735/<br />
<br />
- "Health taken hostage: Cruel denial of medical care in Iran's prisons", Amnesty International (2016), https://www.amnesty.org/ar/wp-content/uploads/2021/05/MDE1341962016ENGLISH.pdf<br />
<br />
- "Barriers to Immigrant Defendants' Access to Justice during the Prosecution Phase in Iranian Criminal Justice System", ResearchGate (2024), https://www.researchgate.net/publication/389174119_Barriers_to_Immigrant_Defendants'_Access_to_Justice_during_the_Prosecution_Phase_in_Iranian_Criminal_Justice_System<br />
<br />
- "The Right of the Accused to Compensation in the Iranian Criminal Justice System", ResearchGate (2018), https://www.researchgate.net/publication/324730064_The_Right_of_the_Accused_to_Compensation_in_the_Iranian_Criminal_Justice_System#:~:text=In%20the%20Iranian%20criminal%20justice%20system%2C%20the%20right%20to%20compensation,will%20explain%20the%20various<br />
<br />
- "You have the right to an attorney… that we approve of: Right to Counsel under Iran’s new Criminal Procedure Code", Oxford Human Rights Hub (2015), https://ohrh.law.ox.ac.uk/you-have-the-right-to-an-attorney-that-we-approve-of-right-to-counsel-under-irans-new-criminal-procedure-code-2/<br />
<br />
- "Capital punishment in Iran", Wikipedia (2024), https://en.wikipedia.org/wiki/Capital_punishment_in_Iran<br />
<br />
- "Iran: New compulsory veiling law intensifies oppression of women and girls", Amnesty International (2024), https://www.amnesty.org/en/latest/news/2024/12/iran-new-compulsory-veiling-law-intensifies-oppression-of-women-and-girls/<br />
<br />
- "Law of the Formation of Public and Revolutionary Courts (2009)", Refworld (2013), https://www.refworld.org/docid/518a19404.html<br />
<br />
- "Codifying Repression: An Assessment of Iran's New Penal Code", Human Rights Watch (2012), https://www.hrw.org/report/2012/08/28/codifying-repression/assessment-irans-new-penal-code<br />
<br />
- "Justice for Iran", justice4iran.org (2024), https://justice4iran.org/<br />
<br />
- "Iran: New compulsory veiling law intensifies oppression of women and girls", Amnesty International (2024), https://www.amnesty.org/en/latest/news/2024/12/iran-new-compulsory-veiling-law-intensifies-oppression-of-women-and-girls/<br />
<br />
- "Islamic Penal Code", UNODC SHERLOC (2013), https://sherloc.unodc.org/cld/uploads/res/islamic-penal-code_html/Islamic_Penal_Code.pdf<br />
<br />
- "The Rule of Law in the Islamic Republic of Iran", University of Essex (2010), https://www1.essex.ac.uk/hri/documents/rule-of-law-in-iran.pdf#:~:text=The%20relevant%20treaty%20to%20which%20Iran%20is,and%20freedom%20of%20association%20under%20Article%2022.&text=This%20is%20a%20clear%20interference%20by%20the%20executive%20in%20judicial%20affairs<br />
<br />
- "Legal Support", UNHCR Iran (2024), https://www.unhcr.org/ir/legal-support<br />
<br />
- "Effectiveness of Legal Aid for Suspects or Defendants in the Iranian Criminal Justice System", International Journal of Educational and Vocational Social Science (2022), https://e-journal.citakonsultindo.or.id/index.php/IJEVSS/article/download/301/304/<br />
<br />
- "Iranian Lawyers: Judiciary’s Mandatory List of “Approved” Counsel Sets “Dangerous Precedent”", Iran Human Rights (2018), https://iranhumanrights.org/2018/03/iranian-lawyers-judiciarys-mandatory-list-of-approved-counsel-sets-dangerous-precedent/<br />
<br />
- "Effectiveness of Legal Aid for Suspects or Defendants in the Iranian Criminal Justice System", International Journal of Educational and Vocational Social Science (2022), https://e-journal.citakonsultindo.or.id/index.php/IJEVSS/article/download/301/304/#:~:text=However%2C%20the%20availability%20of%20legal%20aid%20is,support%2C%20exacerbating%20imbalances%20in%20the%20judicial%20process</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Iran&diff=381661Iran2025-07-15T10:05:31Z<p>IBJadmin: Completed the 1st iteration of the Iran wiki</p>
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<br />
==Background==<br />
<br />
Iran executed at least 975 people in 2024, the highest number since 2015, with serious due process violations including lack of access to lawyers. The key challenge remains that Iran is intensifying its crackdown on human rights lawyers, targeting those who defend protesters and dissidents. <br />
<br />
<br><br />
<br />
==The Legal system==<br />
<br />
Iran operates under a hybrid system combining Islamic law (Sharia) with civil law traditions, heavily influenced by the 1979 Islamic Revolution<br />
<br />
In accordance with the Islamic Penal Code, any act or failure to act for which a punishment has been designated in the laws is a crime. Also, according to Article 2 of the Code of Criminal Procedure, all crimes have a divine aspect. All individuals who have reached the age of maturity designated in Sharia law have complete criminal responsibility and in the case of commission of a crime, will be pursued and punished accordingly. Boys are deemed mature by 15 lunar years and girls 9 lunar years. If a mature person commits a crime, they will be tried based on the Code of Criminal Procedure of the Islamic Republic of Iran. <br />
<br />
<br />
<br />
==Legal Aid==<br />
<br />
'''State-sponsored legal aid''': While the right to counsel is established, the practical availability of free or subsidized legal aid can be limited due to factors like insufficient funding, lack of awareness, and inadequate outreach efforts. <br />
<br />
'''Existing NGOs providing pro bono legal aid'''<br />
<ul><li>UNHCR Iran operates a Legal Services Project with the objective of providing legal assistance to refugees in Iran and resolving disputes through alternative dispute resolution mechanisms.<br />
<li>Iranian Bar Associations Union <br />
<li>Defenders of Human Rights Center (DHRC)<br />
<li>Islamic Human Rights Commission<br />
</li></ul><br />
<br />
'''Number of lawyers''': The Iranian Bar Association is estimated to have around 60,000 members. Detailed breakdown between criminal and civil lawyers is unknown. <br />
<br />
'''Human Rights Organizations'''<br />
<br />
Iran Human Rights (IHR): This non-profit, independent organization focuses on building a strong civil society by empowering citizens and promoting human rights as defined by the Universal Declaration of Human Rights. IHR is particularly known for its work on abolishing the death penalty in Iran and monitoring human rights abuses. <br />
<br />
Center for Human Rights in Iran (CHRI):<br />
Formerly known as the International Campaign for Human Rights in Iran, CHRI is an American non-governmental organization dedicated to promoting human rights in Iran. <br />
<br />
Defenders of Human Rights Center (DHRC):<br />
Founded in 2001, the DHRC advocates for the rights of women, political prisoners, and minorities in Iran. Its president is Nobel Peace Prize laureate Shirin Ebadi. <br />
<br />
Human Rights Activists in Iran (HRAI):<br />
This non-political and non-governmental organization aims to promote, safeguard, and sustain human rights in Iran. HRAI monitors human rights violations, disseminates information, and advocates for various human rights, including freedom of speech, association, and press. <br />
<br />
Impact Iran:<br />
A coalition of 19 non-governmental organizations, Impact Iran works to advocate for human rights and drive positive change in Iran by amplifying the voices of Iranian civil society. <br />
<br />
Ahwaz Human Rights Organization:<br />
This NGO focuses on defending the human rights of the Ahwazi Arab minority in Iran. <br />
<br><br />
<br />
<br />
==Source of Defendants Rights==<br />
'''National Sources of Defendant’s Rights'''<br />
<br />
<li>Iranian Constitution<br />
<br />
* Article 32 states that no person may be arrested except according to and in the manner laid down in the law. If someone is detained, the subject matter of the charge, with reasons (for bringing it), must immediately be communicated and explained in writing to the accused. Within at most 24 hours the file on the case and preliminary documentation must be referred to the competent legal authority. <br />
<br />
* Article 34 states that everyone may refer to the competent courts in search of justice. <br />
<br />
* Article 35 of the Iranian Constitution explicitly states that both parties in a lawsuit have the right to select an attorney, and if they cannot afford one, arrangements must be made to provide legal counsel according to the Center for Human Rights in Iran. <br />
<br />
* Article 36 says that a sentence to punishment and its execution must only be by the decision of a competent court, and by virtue of law.<br />
<br />
* Article 37 says that innocence is the basic principle. No person is considered legally guilty, except in cases where his guilt is established in a competent court.<br />
<br />
* Article 38 prevents use of torture to obtain information. <br />
<br />
* Article 39 protects the arrested person’s dignity and respect.<br />
<br />
<li>Citizenship Rights Law (2004)<br />
<br />
<li>Islamic Penal Code (2013)<br />
<br />
<li>Code of Criminal Procedure of Iran (1999)<br />
<br><br><br />
'''International Sources of defendant’s rights'''<br />
<li>International Covenant on Civil and Political Rights (ICCPR). This treaty, which Iran is a party to, includes guarantees of a fair trial, freedom of expression, and freedom of association.<br />
* Article 14: Guarantees the right to a fair trial and due process of law. <br />
* Article 19: Protects freedom of expression. <br />
* Article 22: Protects freedom of association. <br />
<br />
<li>Iran has signed but not ratified CAT (Convention Against Torture) <br />
<br><br><br />
<br />
==Rights of the Accused==<br />
<br />
<li> '''Presumption of innocence:'''<br />
<br />
Article 37 of the Iranian Constitution says that innocence is the basic principle. No person is considered legally guilty, except in cases where his guilt is established in a competent court. <br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to defense:'''<br />
Article 3 of the “Citizenship Rights Law” (2004) clearly required courts and prosecution offices to respect the right of the accused to a defense and to provide the accused with the services of a defense attorney. <br />
<br />
<br><br />
<br><br />
<li>'''Right to counsel:'''<br />
Article 35 of the Iranian Constitution explicitly states that both parties in a lawsuit have the right to select an attorney, and if they cannot afford one, arrangements must be made to provide legal counsel according to the Center for Human Rights in Iran. Article 185 of the Islamic Penal Code protects rights to an attorney. <br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to a fair trial:'''<br />
Article 34 Constitution states that everyone may refer to the competent courts in search of justice. <br />
Article 36 Constitution says that a sentence to punishment and its execution must only be by the decision of a competent court, and by virtue of law.<br />
Judges are appointed based on ideology rather than legal training.<br />
<br />
<br><br />
<br><br />
<br />
<br />
<li>'''Temporary detention (only with evidence):'''<br />
<br />
Article 5 of the “Citizenship Rights Law” (2004) forbids arbitrary detention of individuals. Officials must also provide the family of the detainee with information. <br />
<br />
<br><br />
<br><br />
<li>'''Confession without coercion:''' <br />
Article 37 Constitution prevents use of torture to obtain information. <br />
Article 169 Islamic Penal Code: Any confession made under duress, coercion, torture, and/or mental or physical harassment and molestation shall have no value and credit; and the court shall interrogate the accused, again. <br />
<br />
<br><br />
<br><br />
<br />
<li>'''Qesās (Retaliation):''' retribution where victim or family members can demand similar punishments <br />
<br />
<br><br />
<br><br />
<li>'''Civil rights upheld:'''<br />
Article 39 Constitution protects the arrested person’s dignity and respect.<br />
Right Against Unlawful Arrests, Searches, Seizures, and Unlawful Detention <br />
Article 32 Constitution states that no person may be arrested except according to and in the manner laid down in the law. If someone is detained, the subject matter of the charge, with reasons (for bringing it), must immediately be communicated and explained in writing to the accused. Within at most 24 hours the file on the case and preliminary documentation must be referred to the competent legal authority. <br />
<br><br />
<br><br />
<br />
<li>'''Right Not to be Tortured or Ill-Treated:'''<br />
Article 37 Constitution prevents use of torture to obtain information. <br />
<br><br />
<br><br />
<br />
<li>'''Right to Medical Care:'''<br />
Article 495 of the Iranian Penal Code states that a physician is responsible for "diyah" (blood money) if their treatment results in harm to a patient, unless the treatment was medically and technically sound and the physician was not at fault, according to the International Academic Institute for Science and Technology.<br />
<br />
<br><br />
<br><br />
<br />
==Rights of Counsel==<br />
<br />
<li>'''Right to Provide Representation:'''<br><br />
Guaranteed by article 35 of the Constitution.<br />
<br><br><br />
<li>'''Right of Access to the Client:'''<br><br />
Investigators can block the presence of trial attorneys during interrogations, according to Article 128 of the Code of Criminal Procedure (1999). Some also use the note under this article to refuse to accept a retainer letter from an attorney.<br />
<br><br><br />
<li>'''Right to Information:'''<br><br />
Trial attorneys are at times unable to accompany their clients through the criminal investigation of their case, and also not able to read the case and prepare motions and defenses on their behalf.<br />
<br><br><br />
<li>'''Right to Confidential Communication with the Client:'''<br><br />
Investigators can refuse to accept a retainer letter from an attorney, thereby denying confidential communications.<br />
<br><br><br />
<br />
==Means of Protecting or Enforcing Rights==<br />
<br />
<li>'''Exclusionary Rule:'''<br><br />
While Iran does not have explicit exclusionary rule that automatically excludes any evidence obtained illegally, there exists protection against using coercion and torture for extracting confession or information (Article 38 of Iranian Constitution).<br />
<br><br><br />
<li>'''Nullity of Procedure:'''<br><br />
Nullity can occur when a court's actions or decisions contravene established legal principles, such as the principle of legality (crimes and punishments must be defined by law) or the principle of due process (fair trial guarantees).<br><br><br />
Failing to properly notify the accused, not allowing them to present a defense, or conducting a trial in an unconstitutional manner, can lead to nullity.<br><br><br />
If the court lacks the legal authority (jurisdiction) to hear a case, any proceedings conducted by that court are null and void.<br />
<br><br><br />
<li>'''Contempt:'''<br><br />
In case of contempt of the court (noncompliance with the court's order), the judge may for the first time add up to a half of the period set forth in the writ to the term of the postponement or enter a conviction sentence (Article 44 of Islamic Penal Code)<br><br><br />
Should a convict, whose punishment has reprieved, be in contempt of the court by not complying with the court orders, without plausible excuse, the court entering the final sentence may, at the request of the public prosecutor or sentence enforcement judge, add to the period of reprieve one to two years, for the first time, or revoke the stay of execution writ. Contempt of the court (noncompliance with the court order) for the second time will result in setting aside the stay of execution writ and enforcement of punishment (Article 50 Islamic Penal Code)<br />
<br><br><br />
<li>'''Civil Actions:'''<br><br />
The incarceration alternatives constitute probation period, unpaid public services, pecuniary penalty, daily pecuniary penalty and civil disability, which will be determined and enforced in case of remission by the complainant and existence of extenuating circumstances (Article 53 Islamic Penal Code)<br><br><br />
There shall be no civil liability in the instances where perpetration of felony is not attributed to the action of any person, such as when it occurs out of natural disaster causes (Article 500 Islamic Penal Code)<br />
<br><br><br />
<br />
==Pre-trial Procedures==<br />
<br />
<li>'''Initiation of proceedings:'''<br><br />
Cases can be initiated through prosecutorial or investigatory action by judicial authorities in performing legal duties such as summoning, arresting, interrogating.<br><br><br />
Complaints for certain forgettable ta'zir offenses must be made within one year from when the victim becomes aware of the offense.<br />
<br><br><br />
<li>'''Arrest, Search and Seizure Laws:'''<br><br />
Limited information on stop-and-frisk<br><br><br />
Arrests can only be made with warrants. Detaining individuals without proper authority can mean 1-3 years imprisonment or fines.<br><br><br />
Pre-trial detention is counted towards the sentence. There are cases marked by allegations of torture and due process violations, and lack of access to lawyer.<br><br><br />
Procurators may supervise private bank accounts with approval of the head of the judicial district (lowered from provincial approval requirements). Once imprisoned, inmates are thoroughly searched, particularly for drugs, with body scanners and strip searches conducted.<br><br><br />
No specific lineup procedures<br />
<br><br><br />
<li>'''Interrogation:'''<br><br />
Prosecution or interrogation action is a measure taken by judicial authorities in carrying out a legally provided function such as summoning, arresting, interrogating, hearing witnesses and informants statements, making offense scene investigations or inspection and letters rogatory (Article 105 Islamic Penal Code).<br><br><br />
Generally conducted under the supervision of a prosecutor and other judicial authority.<br><br><br />
Investigators can gather evidence, question witnesses, and take other actions to uncover a crime. No torture allowed.<br><br><br />
During interrogation, accused have the right to silence and have an advocate.<br />
<br><br><br />
<br />
==Court Procedures==<br />
<br />
<li>'''Pre-Trial: preliminary investigation:'''<br><br />
“Preliminary investigation” is the collection of investigative actions taken for the purpose of discovery of the crime, preserving the evidence of the commission of crime, as well as pursuing the accused from the issuance of the warrant order until his submission to judicial officials. These are usually confidential and in writing. This process aims to collect the reasons and documents of the crime, prevent the flight or conspiring of the accused and the issuance of a preliminary judicial opinion on the guilt or innocence of the accused. (Article 19 of Code of Criminal Procedure)<br><br><br />
The case investigator can only start a “preliminary investigation” for collecting evidence of a crime and issuing a judicial opinion if he is given permission to do so. (conditions outlined in section d, article 3 of the Law of Formation of the General and Revolutionary Courts)<br><br><br />
The formal charges would create cases, which proceed through prosecution court. Murder and rape charges tried by Criminal Courts, while security-related charges, corruption, and drug trafficking processed by Revolutionary Courts.<br><br><br />
Prosecution court issues summons to defendant explaining charges and attendance date/time, usually followed by "temporary arrest" proceedings<br />
<br><br><br />
<li>'''Temporary detention:'''<br><br />
Usually, the accused is summoned or placed in detention. However, they do have specific rights that security officers must respect.<br><br><br />
Arbitrary detention of individuals is forbidden, according to article 5 of the citizenship law passed in May of 2004. Officials must also provide the family of the detainee with information. If the accused is not arrested by the order and demand of a judicial official, they cannot be kept in prison for more than 24 hours without an investigation order being issued (Article 123 of the Criminal Code of Procedure). Temporary detention orders can only be issued for specific cases including murder, kidnapping, spilling acid on someone, or possibility of feeling (Articles 35 and 132 of Iranian Criminal Code of Procedure). If issued, they cannot be held for more than two months based on the majority of charges and four months for very specific charges (Article 3 of law of the Formation of the Public and Revolutionary Courts). In political/press related charges, the investigator on the case has the authority to keep the accused in the detention center of the Ministry of Intelligence for up to four months (Article 20 of the Law of the Formation of the Public and Revolutionary Courts).<br />
<br><br><br />
<li>'''Interrogation:'''<br><br />
The nature of their crime and connection with international human rights organizations can influence the interrogation team’s behavior.<br><br><br />
Cases of solitary confinement, lack of access to hygienic services, use of blindfolds, inappropriate behavior of interrogation teams, bans on fresh air, and refusal to allow phone conversations reflect the use of psychological torture in Iranian prisons.<br />
<br><br><br />
<br />
==Trial==<br />
<br />
'''Nature of the Trial:'''<br><br />
All cases are tried in a specific court depending on the nature of the accusation, the location of the commission of the alleged crime, and the characteristics of the accused.<br><br><br />
Article 168 of the Iranian constitution states that political crimes must be tried in an “open” and “public court” in the presence of a “jury.” Authorities can use the absence of “political crime” as an excuse to deny defendants of a public trial.<br><br><br />
Article 5 of the Law of Formation of Public and Revolutionary courts says that political prisoners are tried in “revolutionary court” without jury. Court sessions typically last a few minutes long. Heads ask questions about name, personal identification, and statement of charges as formalities.<br><br><br />
'''Defendant:'''<br><br />
Protected if a defense attorney is present.<br><br><br />
'''Lawyers:'''<br><br />
At the court's beginning, the prosecutor representative must read the indictment of the accused and defend its content. In political/press related cases, a representative of the prosecutor is usually an intelligence employee of the revolutionary prosecution office who may have played a role in the interrogation of the accused during the preliminary investigation.<br><br><br />
Defense attorneys can defend their clients both verbally and in writing.<br><br><br />
'''Expert Witnesses:'''<br><br />
Where a witness does not have the requisite conditions prescribed by the divine law, her/his statements will be heard. It is for the court to determine the extent of effect and value of those statements as judicial presumption on the judge’s knowledge of facts (Article 176 of Islamic Penal Code)<br><br><br />
Under divine law, a witness must have the following conditions (Article 177 Constitution)<br><br />
<li>a. Maturity; b. Sanity; c. Faithfulness; d. Virtuousness; e. Legitimacy by birth; f. Lack of interest in the subject matter of testimony; g. Lack of hostility against the parties or either party; h. Non-engagement in beggary; i. Not being a vagabond.<br><br><br />
Where a witness was a discerning minor when witnessing the facts subject matter of testimony, but reaches the full age at the time of giving evidence, her/his testimony shall be valid (Article 179)<br><br><br />
Contradictory witness testimony will be considered invalid (Article 182)<br><br><br />
If witness cannot be present in person, evidence shall be valid in writing, live audio-video and/or recorded forms, upon establishing that the requisites are met, and that the attribution is verified (Article 186)<br><br><br />
Challenge of a witness constitutes asseveration regarding lack of one of the qualification requisites prescribed by the divine law for a witness; and verification means giving evidence confirming that the qualification requisites laid down by the divine law for a witness are met (Article 191).<br><br><br />
'''Judges:'''<br><br />
Court verdict must be well-founded and documented. The judge must mention both the basis of his reasoning as well as the legal scripture and articles on which his sentence is based when issuing his opinion (Article 166 of the Constitution and Article 9 of the Law of Formation of the Public and Revolutionary Court).<br><br><br />
'''Victims:'''<br><br />
Where there is a number of victims of an offense, prosecution will commence upon lodging a complaint by each of them, but abatement of prosecution and proceeding, and reprieve of execution of punishment shall be subject to remission by all complainants (Article 102 Islamic Penal Code)<br><br><br />
Should the victim of the offense fail to complain within the period of one year from the date he or she became aware of perpetration of the offense, he or she will lose the right to lodge a criminal complaint (Article 102 Islamic Penal Code)<br><br><br />
Victims have the following rights within the criminal justice system:<br><br />
<li>May submit certified copies or images of evidence to the prosecutor to be included in the case file.<br><br />
<li>Can file civil claims for damages in court before trial concludes.<br><br />
<li>To be heard and participate in judicial proceedings, though no control over the outcome of the case.<br><br />
<li>Seek compensation, influence the prosecution of the offender.<br><br />
<li>Seek solutions that are more restorative than retaliatory.<br><br><br />
<br />
==Sentencing==<br />
<br />
The report is signed by the accused and attorney at the end of the court session. The judge must issue a verdict within a week’s time (Article 17 of the Law of Formation of Public and Revolutionary Courts).<br><br><br />
In practice, suspending the investigation of political/press related cases is a matter of security in the hands of the administration. It can put the individual in a passive position, unable to take decisive actions.<br><br><br />
A court verdict must be officially handed down to the accused and/or his attorneys. The handing down of the verdict is an important matter, because it determines the limited period for appealing the verdict.<br><br><br />
Exception: for political/press related cases, a verdict is not handed down because authorities fear anti-human rights retribution.<br />
<br><br><br />
<br />
==Appeals:==<br />
<br />
The intention of the accused in requesting an appeal of his sentence stems from his belief that the initial sentence is unnecessarily high. However, in the framework of the Iranian criminal system, appealing an initial sentence may potentially increase its length. According to Shi’a jurisprudence governing Iran’s criminal justice system, if the first verdict is not in accordance with the teachings of Sharia law, a harsher punishment may be issued by the appeal court.<br><br><br />
If an individual wants to appeal their temporary detention status, they must submit the request to the Court of Appeal of that province within 10 days. If the court finds the objection valid, it will cancel the decision for temporary detention. (Article 33 of Criminal Procedure Code).<br><br><br />
The deadline for requesting an appeal for people residing in Iran is 20 days, and for people residing out of the country, they have 2 months after the date of notification or the running of the time in which s/he can appeal (Article 236 of Criminal Procedure Code).<br><br><br />
Appellate courts generally summon the accused to a hearing before issuing a decision.<br><br><br />
'''Reasons for appeal (Article 240 of Criminal Procedure Code):'''<br><br />
<li>A- Claiming that the documents referred to by the court were invalid, or the lack of legality in the testimonies of the witnesses, or there were false statements made by the witnesses.<br><br />
<li>B- Claiming that the sentence is against the law.<br><br />
<li>C- Claiming that the judge did not pay attention to the expressed reasons.<br><br />
<li>D- Claiming the judge or issuing court is incompetent<br><br><br />
'''Right to Counsel:'''<br><br />
Guaranteed by Iranian Constitution<br><br><br />
Under new Criminal Procedure Code, lawyers must be pre-approved by the Head of the Judiciary for security related cases<br><br><br />
'''Ineffective Assistance of Counsel:'''<br><br />
Restrictions surrounding the security cases prevent lawyers from accessing case files and the accused during investigation. This can last for weeks or even months. There are also cases where lawyers are denied attendance at the hearing session, and prosecuted for taking on politically sensitive cases.<br><br><br />
Lawyers lack independence, since the judiciary system can label some as more trustworthy than others for security cases.<br><br><br />
'''Other Grounds for Appeal:'''<br><br />
The sentences issued by Public and Revolutionary Courts on Criminal Affairs are definite and can be appealed only in the following cases:<br><br />
<li>A- Crimes for which the legal punishment is execution or stoning.<br><br />
<li>B- Crimes subject to a fixed penalty or retribution and similar instances.<br><br />
<li>C- Confiscation of properties valued more than Rials 1,000,000 (about US$ 1,000).<br><br />
<li>D- Crimes for which the sentence is to pay blood money in an amount more than one fifth of complete blood money.<br><br />
<li>E- Crimes for which the maximum legal punishment is more than three months, imprisonment or whipping or fines more than Rials 500,000 (about US$ 500).<br><br />
<li>F- Sentences of dismissal from service.<br><br><br />
'''Collateral Remedies (Habeas etc…):'''<br><br />
The government has an obligation to compensate the defendant for damages and offset the losses of innocent accused. However, there is a lack of compensation for unjustified detention (Penal Code of 2014).<br />
<br><br><br />
<br />
==Rights in Prison==<br />
<br />
<li>'''Right to Humane Conditions of Confinement:'''<br><br />
Basic necessities outlined in the Constitution for all citizens include: housing, food, clothing, hygiene, medical treatment, education, and the necessary facilities for the establishment of a family.<br />
<br><br><br />
<li>'''Immigrant’s Rights in Detention:'''<br><br />
Studies show that immigrant defendants living in Iran, including Afghans, Pakistanis, Indians, Arabs and Tanzanians, experience significant obstacles in the criminal process. There is a lack of laws and provisions assigned for immigrants in different stages of proceedings.<br />
<br><br><br />
<li>'''Right to Medical Care in Prison:'''<br><br />
The judge may consider the defendant’s medical services to suspend performance of public service temporarily, or propose an alternative punishment to the sentence issued in court (Islamic Penal Code Article 84).<br><br><br />
If a physician causes death/body injury while treating the defendant, they would be liable to pay wergild (Islamic Penal Code Article 495).<br><br><br />
Amnesty International issued a report documenting the denial of medical care in Iran’s prisons. The report details denial of specialized medical care outside prison, intentional interruption or discontinuation of treatments, denial of release on medical grounds, withholding medication, and gender-specific abuses.<br />
<br><br><br />
<li>'''Right to Mental Health Care:'''<br><br />
At present, Iran has no laws that specifically address mental health. However, the civil law, the Islamic penal code, a jurisdiction act, a set of safeguarding measures from 1960, family protection law and a law permitting payment of wages to psychiatric patients do help to protect different aspects of the rights of psychiatric patients.<br />
<br><br><br />
<li>'''Rights of Special Populations:'''<br><br />
'''Women'''<br><br><br />
'''LGBT Prisoners'''<br><br />
Iran Human Rights considers the Islamic Penal Code to be the main cause of violence against the LGBT community because it sets flogging and the death penalty for homosexual relations.<br><br><br />
Fixed punishment is set for sodomy, where the “active” party will be sentenced to death if they used force or rape. The “passive” party will be sentenced to death regardless of marital status (Article 234 Islamic Penal Code)<br><br><br />
'''Mentally Ill Prisoners'''<br><br />
Where at the time of committing an offense the perpetrator suffered from mental disorder in such manner that he or she lacked the volition and power of discernment, he or she will be deemed insane, and shall have no criminal liability (Islamic Penal Code Article 149)<br><br><br />
'''Juveniles'''<br><br />
If the minor commits the offense at age 9-15 years, the court will make one of the decisions:<br><br />
<li>Hand over to the parents or guardians and asking them to chastise/train the minor to adopt good conduct<br><br><br />
If the minor was of age 15-18, the following punishments will be executed:<br><br />
<li>a.Detention in the reformatory for the period of two to five years in respect of the offenses the statutorily prescribed punishments of which are the first to the fifth degree discretionary punishments<br><br />
<li>b.Detention in the reformatory for the period of one to three year(s) in respect of the offenses the statutorily prescribed punishment of which is the fourth degree discretionary punishment<br><br />
<li>c.Detention in the reformatory for the period of three months to one year, or pecuniary penalty from ten million (10,000,000) Rials to forty million (40,000,000) Rials, or performance of one hundred and eighty to seven hundred and twenty hours of unpaid public services in respect of the offenses the statutorily prescribed punishments of which is the fifth degree discretionary punishment<br><br />
<li>d.Payment of pecuniary penalty from one million (1,000,000) Rials to ten million (10,000,000) Rials, or performance of sixty to one hundred and eighty hours of unpaid public services in respect of the offenses the statutorily prescribed punishments of which is the sixth degree discretionary punishment<br><br />
<li>e. Payment of pecuniary penalty up to one million (1,000,000) Rials in respect of the offenses the statutorily prescribed punishments of which are the seventh degree and eighth degree discretionary punishments.<br><br><br />
Criminal convictions of minors and juveniles create no criminal records (Article 95 Islamic Penal Code)<br />
<br><br><br />
<br />
==Resources==<br />
- "Law of the Formation of the Public and Revolutionary Courts", legal-tools.org (2009), https://www.legal-tools.org/doc/f9f706/pdf/<br />
<br />
- "The Islamic Penal Code of Iran", Iran Human Rights Documentation Center (2014), https://iranhrdc.org/wp-content/uploads/pdf_en/Iranian_Codes/Iran_Criminal_Code_English_143233623.pdf<br />
<br />
- "Islamic Penal Code", UNODC SHERLOC (2013), https://sherloc.unodc.org/cld/uploads/res/islamic-penal-code_html/Islamic_Penal_Code.pdf<br />
<br />
- "Administration of criminal justice in Iran", Cambridge University Press (2020), https://www.cambridge.org/core/books/abs/rule-of-law-in-the-islamic-republic-of-iran/administration-of-criminal-justice-in-iran/6E3EBEB82AEAEA21BE1A1C93E7661AA7<br />
<br />
- "Criminal Procedure Law of Iran", Iran Best Lawyer (n.d.), https://www.iranbestlawyer.com/criminal-procedure-law-of-iran/#:~:text=Article%2015,adherence%20to%20civil%20procedure%20formalities<br />
<br />
- "The Iranian Mental Health Act", US National Library of Medicine (2017), https://pmc.ncbi.nlm.nih.gov/articles/PMC5618927/<br />
<br />
- "LGBT-Phobia and the Cruelty of the Islamic Penal Code in Iran", Iran Human Rights (2022), https://iranhr.net/en/articles/4735/<br />
<br />
- "Health taken hostage: Cruel denial of medical care in Iran's prisons", Amnesty International (2016), https://www.amnesty.org/ar/wp-content/uploads/2021/05/MDE1341962016ENGLISH.pdf<br />
<br />
- "Barriers to Immigrant Defendants' Access to Justice during the Prosecution Phase in Iranian Criminal Justice System", ResearchGate (2024), https://www.researchgate.net/publication/389174119_Barriers_to_Immigrant_Defendants'_Access_to_Justice_during_the_Prosecution_Phase_in_Iranian_Criminal_Justice_System<br />
<br />
- "The Right of the Accused to Compensation in the Iranian Criminal Justice System", ResearchGate (2018), https://www.researchgate.net/publication/324730064_The_Right_of_the_Accused_to_Compensation_in_the_Iranian_Criminal_Justice_System#:~:text=In%20the%20Iranian%20criminal%20justice%20system%2C%20the%20right%20to%20compensation,will%20explain%20the%20various<br />
<br />
- "You have the right to an attorney… that we approve of: Right to Counsel under Iran’s new Criminal Procedure Code", Oxford Human Rights Hub (2015), https://ohrh.law.ox.ac.uk/you-have-the-right-to-an-attorney-that-we-approve-of-right-to-counsel-under-irans-new-criminal-procedure-code-2/<br />
<br />
- "Capital punishment in Iran", Wikipedia (2024), https://en.wikipedia.org/wiki/Capital_punishment_in_Iran<br />
<br />
- "Iran: New compulsory veiling law intensifies oppression of women and girls", Amnesty International (2024), https://www.amnesty.org/en/latest/news/2024/12/iran-new-compulsory-veiling-law-intensifies-oppression-of-women-and-girls/<br />
<br />
- "Law of the Formation of Public and Revolutionary Courts (2009)", Refworld (2013), https://www.refworld.org/docid/518a19404.html<br />
<br />
- "Codifying Repression: An Assessment of Iran's New Penal Code", Human Rights Watch (2012), https://www.hrw.org/report/2012/08/28/codifying-repression/assessment-irans-new-penal-code<br />
<br />
- "Justice for Iran", justice4iran.org (2024), https://justice4iran.org/<br />
<br />
- "Iran: New compulsory veiling law intensifies oppression of women and girls", Amnesty International (2024), https://www.amnesty.org/en/latest/news/2024/12/iran-new-compulsory-veiling-law-intensifies-oppression-of-women-and-girls/<br />
<br />
- "Islamic Penal Code", UNODC SHERLOC (2013), https://sherloc.unodc.org/cld/uploads/res/islamic-penal-code_html/Islamic_Penal_Code.pdf<br />
<br />
- "The Rule of Law in the Islamic Republic of Iran", University of Essex (2010), https://www1.essex.ac.uk/hri/documents/rule-of-law-in-iran.pdf#:~:text=The%20relevant%20treaty%20to%20which%20Iran%20is,and%20freedom%20of%20association%20under%20Article%2022.&text=This%20is%20a%20clear%20interference%20by%20the%20executive%20in%20judicial%20affairs<br />
<br />
- "Legal Support", UNHCR Iran (2024), https://www.unhcr.org/ir/legal-support<br />
<br />
- "Effectiveness of Legal Aid for Suspects or Defendants in the Iranian Criminal Justice System", International Journal of Educational and Vocational Social Science (2022), https://e-journal.citakonsultindo.or.id/index.php/IJEVSS/article/download/301/304/<br />
<br />
- "Iranian Lawyers: Judiciary’s Mandatory List of “Approved” Counsel Sets “Dangerous Precedent”", Iran Human Rights (2018), https://iranhumanrights.org/2018/03/iranian-lawyers-judiciarys-mandatory-list-of-approved-counsel-sets-dangerous-precedent/<br />
<br />
- "Effectiveness of Legal Aid for Suspects or Defendants in the Iranian Criminal Justice System", International Journal of Educational and Vocational Social Science (2022), https://e-journal.citakonsultindo.or.id/index.php/IJEVSS/article/download/301/304/#:~:text=However%2C%20the%20availability%20of%20legal%20aid%20is,support%2C%20exacerbating%20imbalances%20in%20the%20judicial%20process</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Iran&diff=381660Iran2025-07-15T09:30:36Z<p>IBJadmin: Created page with " {{Languages|English}} <div class="box" style="padding: 40px; font-size: 1.5em; font-family: Arial, sans-serif; line-height: 1.5; border: 3px solid yellow; background-color: #FFFF00; text-align: center; margin: 30px;"> ⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>. </div> {|..."</p>
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⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>.<br />
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{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
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* Constitution of the Principality of Andorra <ref>https://www.consellgeneral.ad/fitxers/documents/constitucio/const-en<br />
</ref><br />
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<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources </h2> <br />
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* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
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<br />
==Background==<br />
<br />
Iran executed at least 975 people in 2024, the highest number since 2015, with serious due process violations including lack of access to lawyers. The key challenge remains that Iran is intensifying its crackdown on human rights lawyers, targeting those who defend protesters and dissidents. <br />
<br />
<br><br />
<br />
==The Legal system==<br />
<br />
Iran operates under a hybrid system combining Islamic law (Sharia) with civil law traditions, heavily influenced by the 1979 Islamic Revolution<br />
<br />
In accordance with the Islamic Penal Code, any act or failure to act for which a punishment has been designated in the laws is a crime. Also, according to Article 2 of the Code of Criminal Procedure, all crimes have a divine aspect. All individuals who have reached the age of maturity designated in Sharia law have complete criminal responsibility and in the case of commission of a crime, will be pursued and punished accordingly. Boys are deemed mature by 15 lunar years and girls 9 lunar years. If a mature person commits a crime, they will be tried based on the Code of Criminal Procedure of the Islamic Republic of Iran. <br />
<br />
<br />
<br />
==Legal Aid==<br />
<br />
'''State-sponsored legal aid''': While the right to counsel is established, the practical availability of free or subsidized legal aid can be limited due to factors like insufficient funding, lack of awareness, and inadequate outreach efforts. <br />
<br />
'''Existing NGOs providing pro bono legal aid'''<br />
<ul><li>UNHCR Iran operates a Legal Services Project with the objective of providing legal assistance to refugees in Iran and resolving disputes through alternative dispute resolution mechanisms.<br />
<li>Iranian Bar Associations Union <br />
<li>Defenders of Human Rights Center (DHRC)<br />
<li>Islamic Human Rights Commission<br />
</li></ul><br />
<br />
'''Number of lawyers''': The Iranian Bar Association is estimated to have around 60,000 members. Detailed breakdown between criminal and civil lawyers is unknown. <br />
<br />
'''Human Rights Organizations'''<br />
<br />
Iran Human Rights (IHR): This non-profit, independent organization focuses on building a strong civil society by empowering citizens and promoting human rights as defined by the Universal Declaration of Human Rights. IHR is particularly known for its work on abolishing the death penalty in Iran and monitoring human rights abuses. <br />
<br />
Center for Human Rights in Iran (CHRI):<br />
Formerly known as the International Campaign for Human Rights in Iran, CHRI is an American non-governmental organization dedicated to promoting human rights in Iran. <br />
<br />
Defenders of Human Rights Center (DHRC):<br />
Founded in 2001, the DHRC advocates for the rights of women, political prisoners, and minorities in Iran. Its president is Nobel Peace Prize laureate Shirin Ebadi. <br />
<br />
Human Rights Activists in Iran (HRAI):<br />
This non-political and non-governmental organization aims to promote, safeguard, and sustain human rights in Iran. HRAI monitors human rights violations, disseminates information, and advocates for various human rights, including freedom of speech, association, and press. <br />
<br />
Impact Iran:<br />
A coalition of 19 non-governmental organizations, Impact Iran works to advocate for human rights and drive positive change in Iran by amplifying the voices of Iranian civil society. <br />
<br />
Ahwaz Human Rights Organization:<br />
This NGO focuses on defending the human rights of the Ahwazi Arab minority in Iran. <br />
<br><br />
<br />
<br />
==Source of Defendants Rights==<br />
'''National Sources of Defendant’s Rights'''<br />
<br />
<li>Iranian Constitution<br />
<br />
* Article 32 states that no person may be arrested except according to and in the manner laid down in the law. If someone is detained, the subject matter of the charge, with reasons (for bringing it), must immediately be communicated and explained in writing to the accused. Within at most 24 hours the file on the case and preliminary documentation must be referred to the competent legal authority. <br />
<br />
* Article 34 states that everyone may refer to the competent courts in search of justice. <br />
<br />
* Article 35 of the Iranian Constitution explicitly states that both parties in a lawsuit have the right to select an attorney, and if they cannot afford one, arrangements must be made to provide legal counsel according to the Center for Human Rights in Iran. <br />
<br />
* Article 36 says that a sentence to punishment and its execution must only be by the decision of a competent court, and by virtue of law.<br />
<br />
* Article 37 says that innocence is the basic principle. No person is considered legally guilty, except in cases where his guilt is established in a competent court.<br />
<br />
* Article 38 prevents use of torture to obtain information. <br />
<br />
* Article 39 protects the arrested person’s dignity and respect.<br />
<br />
<li>Citizenship Rights Law (2004)<br />
<br />
<li>Islamic Penal Code (2013)<br />
<br />
<li>Code of Criminal Procedure of Iran (1999)<br />
<br><br><br />
'''International Sources of defendant’s rights'''<br />
<li>International Covenant on Civil and Political Rights (ICCPR). This treaty, which Iran is a party to, includes guarantees of a fair trial, freedom of expression, and freedom of association.<br />
* Article 14: Guarantees the right to a fair trial and due process of law. <br />
* Article 19: Protects freedom of expression. <br />
* Article 22: Protects freedom of association. <br />
<br />
<li>Iran has signed but not ratified CAT (Convention Against Torture) <br />
<br><br><br />
<br />
==Rights of the Accused==<br />
<br />
<li> '''Right Against Unlawful Arrests, Searches and Seizures:'''<br />
<br />
Warrants are required for an arrest<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Unlawful Detention:'''<br />
"Police legally may detain persons for 48 hours without charging them with a crime, and police generally observed this time limit in practice.” After which point, the right to be brought before a judge is constitutionally binding. Moreover, there is a procedure in place for a detainee to request the court to decide the lawfulness of their detention, and remedy their rights should the court decide they were falsely detained.<br />
<br />
<br><br />
<br><br />
<li>'''Right Not to be Tortured or Ill-Treated:'''<br />
Those accused can bring about human rights lawsuits should they face a human rights violation, including torture or ill-treatment, while accused. This is in line with Article 8 of the Andorran constitution which “recognises the right to life and protection thereof, forbids torture and other cruel, inhuman or degrading punishments and explicitly forbids the death penalty.” The Human Rights Practices Country Report of 2022 found that there were no reports of torture or ill-treatment employed by government officials.xv Indeed, historically the Report to the Andorran Government on the visit to Andorra carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment found that anyone accused in Andorra would “run little risk of being ill-treated” in 1998<br />
<br><br />
<br><br />
<br />
<li>'''Right to Medical Care:'''<br />
Article 24 of the Andorran Criminal Code highlights that the notification of custody document given to all detainees will also express their rights and reasons for detention: <br />
<br />
These include: a right to immediately notify a third party; access to legal counsel (either of your own choosing or through government-provided support); and access to medical care (from forensic doctors for free or an individual’s own doctor at their expense)<br />
<br />
<br><br />
<br><br />
<br />
<br />
<li>'''Right to be Informed of Charges:'''<br />
<br />
The right to be informed of charges is a constitutional right in Andorra. The notification of charges and custody documents are provided in multiple languages (including: Catalan, Catalan-Spanish, Catalan-French and Catalan-English) <br />
<br />
<br><br />
<br><br />
<li>'''Right to Presumption of Innocence:''' <br />
The right to Presumption of innocence is a constitutional right in Andorra.<br />
<br />
<br><br />
<br><br />
<br />
<br />
<li>'''Right Against Self-Incrimination:'''<br />
<br />
The right against self-incrimination is a constitutional right in Andorra. <br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Counsel and Effective Assistance:'''<br />
<br />
Article 10 of the constitution states that: “All persons shall have the right to counsel and the technical assistance of a competent lawyer, to trial within a reasonable time.” Unconstitutional for detainees to not have access to lawyers for long periods (24 hours as was previous practice).There is access to both choosing your own lawyer or using one provided by the authorities which comes at the moment of an individual’s arrest. <br />
<br />
Since 2014, Andorra benefitted from the Judicial Assistance and Mediation Service which provides free, individualised legal advice to the accused. <br />
<br />
<br><br />
<br><br />
<li>'''Right to Due Process:'''<br />
<br />
The right to due process is a constitutional right in Andorra. <br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Equal Protection of the Laws:'''<br />
<br />
“All persons are equal before the law. No one may be discriminated against on grounds of birth, race, sex, origin, religion, opinions or any other personal or social condition.” <br />
<br />
<br />
<br><br />
<br><br />
<li>'''Right to Bail:'''<br />
<br />
There are bail procedures in place. <br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Ex Post Facto Prosecution:'''<br />
<br />
No one shall be held criminally or administratively liable on account of any acts or omissions which were lawful at the time when they were committed.<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Double Jeopardy:'''<br />
<br />
Judgments, once final, have the value of res judicata and may not be modified or quashed except in the cases provided for by the law or when, in exceptional cases, the Tribunal Constitucional, after the corresponding process of Constitutional appeal, decides that they were rendered in violation of certain fundamental rights.<br />
<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to a Fair Trial:'''<br />
<br />
<ul><li>Generally: <br />
<br />
“All persons shall have the right to jurisdiction and to have a ruling founded in the law, and to a due trial before an impartial tribunal established by law.”<br />
<br />
<br />
<br />
<li>Right to a Trial by Jury:<br />
<br />
Trials are public, and defendants can request a jury. <br />
<br />
<br />
<br />
<li>Right to a Speedy Trial:<br />
<br />
“All persons shall have the right […] to trial within a reasonable time” <br />
<br />
Provisional detention before a trial must not exceed four months, though a judge can extend this period with good reason, as long as the duration of detention is less than half of the maximum penalty of the offense ordered. The Andorran Country Report on Human Rights Practices for 2022, defined the pace of their justice system as “slow” due to a lack of human resources, with the average pre-trial detention period being 498 days - significantly beyond the legally stipulated period. <br />
<br />
<br />
<br />
<li>Right to an Impartial Judge: <br />
<br />
All persons shall have the right to jurisdiction and to have a ruling founded in the law, and to a due trial before an impartial tribunal established by law.</ul> <br />
<br />
<br />
<br />
<li>'''Right to Language Interpretation:'''<br />
<br />
If the defendant does not understand the language in which he is being questioned, the bailiff must ask for an interpreter, to whom he must take an oath in legal form, so that he faithfully fulfils his mission. <br />
<br />
<br><br />
<br><br />
<li>'''Right to Habeas Corpus:''' <br />
<br />
All persons have the right to liberty and security and shall only be deprived of them on such grounds and in accordance with such procedures as are established in the Constitution and the laws. <br />
<br />
Executive detention shall take no longer than the time needed to carry out the enquiries in relation to the clarification of the case, and in all cases the detained shall be brought before the judge within 48 hours. <br />
<br />
The law shall establish a procedure so that the detained may request the court to decide about the lawfulness of the detention. Likewise the law shall establish the procedure to restore the impaired fundamental rights of any person under detention. <br />
<br><br />
<br><br />
<br />
<li>'''Capital Punishment:''' <br />
<br />
"The death penalty is prohibited" <br />
<br />
<br><br />
<br><br />
<li>'''Right to Appeal:'''<br />
<br />
“All persons shall have the right […] to appeal in criminal causes”<br />
<br />
<br><br />
<br><br />
<br />
==Rights of Counsel==<br />
<br />
When representing a client charged and detained with a crime, Counsel have the right to meet privately with them for a period of up to 30 minutes, as well as attend any client interrogations. During interrogations, they also have the right to intervene to protect and advise their client. <br />
<br />
Legal Counsel has access to all relevant information. At the point of trial, counsel are given a minimum warning of 15 days before proceedings begin to prepare any evidence to support their case. <br />
<br />
<br><br />
<br />
==Means of Protecting and Enforcing Rights==<br />
<br />
'''Exclusionary Rule:'''<br />
<br />
No evidence obtained, directly or indirectly, in violation of fundamental rights or freedoms is effective.<br />
<br />
'''Nullity of Procedure:'''<br />
<br />
The court may agree to the definitive/provisional dismissal of a case: in either total or partial form. <br />
<br />
Dismissal is final when: <br />
<br />
<li>It is clear that the crime has not been committed <br />
<br />
<li>When the proven fact does not constitute crime <br />
<br />
<li>When those prosecuted appear exempt from criminal liability</li> <br />
<br />
<br />
<br />
Dismissal is provisional when: <br />
<br />
<li>The summary procedure does not provide enough evidence to demonstrate a crime being committed <br />
<br />
<li>After verifying the criminal act, there is no indication of who the perpetrators, accomplices, or accessories after the fact. <br />
<br />
<li>When, after the crime has been committed, the defendant’s dementia or a serious health condition prevents them from appearing and exercising their right of defence, until his health is recovered.</li><br />
<br />
The final judgment is irrevocable and leaves the judgement firmly closed. <br />
<br><br />
The provisional dismissal leaves the summary proceedings open until the appearance of new information or proof, except in the case of prescription. <br />
<br><br />
In the case of temporary suspension or termination of the criminal action due to the death of the defendant, the goods/money acquired via the criminal act may be confiscated according to Article 70 of the Code of Criminal Procedure. For this reason, the proceedings must continue with heirs/legal representatives of the defendant, who are civilly responsible with regard to the goods subject to confiscation, unless they renounce ownership. <br />
<br><br />
If the Public Prosecutor's Office requests dismissal and there has been no establishment of a private prosecution, the court must agree that the public prosecutor's claim be made known to the people who may be interested in pursuing the criminal action so that within the period of 15 days they can exercise it if they consider it appropriate; if they do not, the court agrees to the dismissal <br />
<br><br />
In the event that there is already an action in private accusation, or an action pursued in the merits of what is provided in the previous paragraph, the term of 15 days must be given to formulate the letter requesting the opening of the trial orally and in the same written form formulate the provisional qualification of the facts and propose the evidence that he intends to rely on. The lack of presentation within the mentioned term leads to the withdrawal of the criminal action and the civil action in the criminal process. <br />
<br />
<br><br />
<br><br />
'''Civil Actions:'''<br />
<br><br />
<br />
Plaintiffs may bring lawsuits seeking damages for, or cessation of, a human rights violation. Individuals and organisations may appeal domestic decisions to the European Court of Human Rights (ECHR). The national ombudsman serves to protect and defend basic rights and public freedom on behalf of citizens. <br />
<br><br />
The Civil Procedure Code provides for two classes of procedures: ordinary and abbreviated. The law also regulates other special procedures, such as injunctions, summary guardianship, leases, employment, family or modification of capacity, and affects the common rules for related processes to the person and the family. <br />
<br />
<li>Ordinary: <br />
<br />
Ordinary procedure is the standard procedure for substantiating matters of an amount equal to/greater than 20000€, those of an undetermined amount and those that have not been designated a special procedure. <br />
<br />
Structured with a written phase which begins with a demand, followed by the notification and the answer, a preliminary hearing, and an oral trial <br />
<br />
<li>Abbreviated: <br />
<br />
A procedure determined by reason of the matter or the amount for processes governed by special procedure, those without a specific procedure, and claims of up to 20000€. <br />
<br />
The procedure begins with a phase of written allegations, an oral trial, and a sentence - which is subject to appeal if the claim amounts to more than 1.500€<br />
<br><br />
<br><br />
==Pre-Trial Procedure==<br />
<br />
'''Police procedures'''<br />
<br />
<li>''Arrest, Search and Seizure Laws:''<br />
<br />
The police are obliged to arrest those who try to commit a crime; criminals caught in an act of criminality; those who escape prison; and those they reasonably believe responsible for a crime. <br />
<br />
Formal search warrants must be granted by a magistrate, and there should be an attending court clerk who is responsible for listing any goods appropriated during a warrant (unless there is an urgent reason why this cannot occur) at a crime scene or place of arrest, overseeing the search. <br />
<br />
All persons of interest should be questioned but cannot be searched without prior consent unless the court has authorized their search. Based on this, the use of firearms at the point of arrest in Andorra is only lawful should there be a threat of imminent danger or life. <br />
<br />
<br />
<li>''Interrogation:''<br />
<br />
The use of interrogation rooms was recommended by the CPT committee in 2011 and have been used since. This allows for interrogations to be recorded, with tapes being held for a period of up to four months.xlix Should a defendant need an interpreter the Andorran Justice Administration must provide them with one free of charge to the defendant in any interrogation.l <br />
<br><br />
<br><br />
<br />
==Court Procedures==<br />
<br />
<li>'''Pre-Trial:'''<br />
<br />
Criminal action can only be brought through a written complaint, subject to certain procedural requirements outlined in the Article. Once the complaint is filed, it can be admitted/rejected depending on whether the facts may or may not constitute a crime. <br />
<br><br />
When factual elements in the certificate, complaint, or dispute cannot determine the nature or circumstances of the crime, the people who participated, or the appropriate procedure, the court must initiate preliminary proceedings and report to the Fiscal Ministry - this must be carried out in a swift manner. This process is not necessary if it is perfectly clear or unclear that the facts constitute a crime. <br />
<br><br />
Criminal offenses are tried by the Unipersonal Court of the Batlle. Those summoned to court are warned at least 15 days in advance. The trial is public and begins with the reading of the complaint or grounds.<br />
<br />
The defendant’s previous convictions, personality, and medical/psychiatric state are all taken into account. The court informs the defendant of their rights, and the defendant has an obligation to mention or ratify the appointment of a lawyer - otherwise, the lawyer on duty acts. The statement is taken with the lawyer in attendance. <br />
<br><br />
The court can summon any person as a witness, whether a citizen or a foreigner. If the witness refuses to appear or testify, this may constitute a criminal offense. <br />
<br><br />
One or two qualified experts may be appointed in cases where scientific or artistic knowledge is required. <br />
<br />
The battle must strive to collect all the right elements to be able to establish, if applicable, the imputability of the crime to the accused and to determine guilt or innocence. When the proceedings result in some rational indication of criminality against a certain person, a warrant of prosecution must be issued. The prosecutor then has the option to either request the opening of the oral trial or to dismiss the case.<br />
<br><br />
<br><br />
<li>'''Oral Trial:'''<br />
<br />
Trials are public, the defendant will be present and able to request a jury. <br />
<br />
Core aspects of the process: <br />
<br />
<ul><li>The defendant is invited to explain themselves regarding the facts they are accused of <br />
<br />
<li>Witnesses must appear or testify. Expert evidence is admitted by the court if it can contribute to clarification of the facts. The trial is concluded by the President if parties do not want to modify their provisional conclusions</ul><br />
<br><br />
<li>'''Sentencing:'''<br />
<br />
Andorran sentencing procedure is found in chapters three and four of their penal code. <br />
<br />
Perpetrators of any completed offense will be sentenced to the full penalty of their complete offense as is provided in law (Article 52), unless they were provoked, in which case, their sentence is reduced (Article 54). Attempted crimes also have reduced sentences (Article 54). <br />
<br><br />
The minimum custodial sentence in Andorra is three months. Should a perpetrator be sentenced for a crime in which the prison sentence amounts to a period of less than three months, they will instead serve a non-custodial sentence (Article 55). <br />
<br><br />
Perpetrators will serve simultaneous sentences for a single offense, and successive sentences should they have committed several offenses - as long as the successive sum does not exceed 25 years (or 30 should one of the crimes committed have a maximum sentence of 20 years attached to it). (Article 58). <br />
<br><br />
<br><br />
<br />
<li>'''Appeals:'''<br />
<br><br />
<ul><li>Appeals against the resolutions of the battles in the pretrial stage: <br />
<br />
Pertains to appeals against the various resolutions that the court makes in the pre-trial stage (e.g., agreeing to find proceedings, denying prosecution, etc.). Appeals must be lodged before the President of the Court of Appeals within five days of the notification of the relevant decision. <br />
<br />
<li>Appeals against the resolutions of the tribunal in the oral trial: <br />
<br />
The appeal is decided by the Court of Appeal </ul><br />
<br />
The appeal is decided by the Court of Appeal and needs to be filed to the prosecutor's office (Fiscal Ministry) within 15 days. The hearing is in public but for an exception granted by the court. Deliberations of the court are secret, and a resolution is adopted by a majority. The Court cannot aggravate an appealed decision unless it was the appellants' express request.<br />
<br />
<br><br />
<br />
==Rights in Prison==<br />
<br />
<br />
<li>'''Right to Humane Conditions of Confinement:'''<br />
<br />
The La Comella Prison Centre in Andorra de Vella is the only prison in Andorra. It is a purpose-built building that opened in 2005 with an official capacity of 123. The right to privacy of detainees is upheld with solid doors to cells and the option to be confined individually or with someone else.<br />
<br />
During winter months, detainees have outdoor recreational access for four hours daily, which is increased by an hour during summer. As well as indoor common rooms, equipped with board games and books. There is an activities coordinator at the prison who hosts well-attended sessions in various areas.<br />
<br><br />
Employment opportunities are paid and come mostly from assistance in general prison services, as well as from external contracts for prisoners to work for companies to expand revenues of income generation. La Comella prison also offers educational opportunities, employing a full-time, on-site teacher. There is virtual access to virtual higher education platforms available for prisoners to continue their education. <br />
<br><br />
Visitations can occur in both open environments and those in closed visiting rooms. Since there is only one prison in Andorra, families who live far away from the prison can contact their incarcerated loved one via Skype conferencing. <br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Medical Care in Prison:'''<br />
<br />
La Comella Prison Centre has an infirmary and since 2015, the Andorran Health Care Service has held responsibility for the health of prisoners. There are attending doctors as well as a nursing team, who are available on-call should there be an emergency outside of working hours. Should prisoners require specialized care, they are transferred to the Nostra Senyora Hospital where there are two secure rooms which can be guarded by prison personnel. Additionally, the hospital’s addiction treatment services are made available to prisoners suffering from addictions - including the administration of methadone. <br />
<br />
<br> <br />
<br><br />
<li>'''Right to Mental Health Care:'''<br />
<br />
La Comella Prison has an attending psychiatrist and psychologist, however, it is recommended by the CPD that their hours be doubled to meet the needs of every prisoner requiring mental health support.<br />
<br />
<br><br />
<br><br />
<li>'''Restriction of rights:'''<br />
<br />
Sanctioned prisoners have the right to appeal this in court. Sanctions range in severity and include: <br />
<br />
<ul><li>Solitary confinement (which was used six times in 2017, for no period exceeding seven days - the law restricts this period to 14 days); <br />
<br />
<li>Visiting rights and telephone restrictions; <br />
<br />
<li>Television restrictions.</li><br />
<br />
A doctor is required to determine if a prisoner is mentally fit to handle solitary confinement, and if allowed, a prison nurse will visit isolated prisoners daily to ensure their well-being.</ul> <br />
<br />
<br><br />
<li>'''Rights of Special Populations:'''<br />
<br />
<ul><li>''Women'': <br />
<br />
La Comella prison has a specific unit for women (of whom there were five detainees in 2018). Both men and women at La Comella prison have access to the same variety of activities. <br />
<br />
<li>''Juveniles:'' <br />
<br />
It is a rarity for a juvenile to be incarcerated in Andorra. Since 2017, no minors have been incarcerated. There are anti-isolation protocols in place, should there be a sole juvenile occupant of the prison. <br />
<br />
Despite this, La Comella prison has a specific unit for up to 10 minors with larger cells than those offered to adult prisoners. Juveniles are afforded a host of recreational and educational resources in the prison centre, these include: <br />
<br />
<ul><li>A lounge room with televisions <br />
<br />
<li>A classroom with computed access <br />
<br />
<li>A library <br />
<br />
<li>A room for manual work <br />
<br />
<li>A gym <br />
<br />
<li>A leisure room with ping pong tables <br />
<br />
<li>A spacious courtyard with basketball hoops</li></ul> <br />
<br />
When minors were last in La Comella, they were required to be in their cells from 2100-0800, with the rest of their day being filled with activities and recreational time. <br />
<br />
Minors can be placed under solitary confinement for a maximum of three days at a time. In 2018, the CPT urged this to be prohibited given that Rule 45(2) of the United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) 2015 and Rule 67 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty both state that minors should not be placed into isolation.</ul><br />
<br />
==Resources==<br />
<br />
- Andorra, Britannica: https://www.britannica.com/place/Andorra<br />
<br />
- La Coutume d’Andorre, Brutails (1904) <br />
<br />
- https://www.justicia.ad/<br />
<br />
- CEPEJ Evaluation Report, 2022 Evaluation Cycle. (“CEPEJ Report 2022”) https://rm.coe.int/cepej-fiche-pays-2020-22-e-web/1680a86276<br />
<br />
- Constitution of the Principality of Andorra: https://www.consellgeneral.ad/fitxers/documents/constitucio/const-en<br />
<br />
- Legislative decree of 12-17-2008 publishing the revised text of the Code of Criminal Procedure (“Criminal Procedure Code”) https://www.bopa.ad/Documents/Detall?doc=5845A<br />
<br />
- CEPEJ Report 2022<br />
<br />
- Andorra Factsheet, International Justice Research Centre https://ijrcenter.org/country-factsheets/country-factsheets-europe/andorra-human-rights-factsheet/<br />
<br />
- Andorra, Country reports on Human Rights Practices for 2011, Bureau of Democracy, Human Rights and Labor, United States Department of State (“US 2011 Report”) https://2009-2017.state.gov/documents/organization/186534.pdf <br />
<br />
- Andorra 2022, Human Rights Report: https://www.state.gov/wp-content/uploads/2023/02/415610_ANDORRA-2022-HUMAN-RIGHTS-REPORT.pdf<br />
<br />
- Report to the Andorran Government on the visit to Andorra carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680657674<br />
<br />
- Law 22/2021, of September 17, on the consolidated text of the Code of Civil Procedure (“Civil Procedure Code”) <br />
<br />
- Rapport au Gouvernement d’Andorre relatif à la visite effectuée en Andorre par le Comité européen pour la prévention de la torture et des peines ou traitements inhumains ou dégradants (CPT)</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Criminal_Justice_Systems_Around_the_World&diff=381659Criminal Justice Systems Around the World2025-07-15T08:38:24Z<p>IBJadmin: </p>
<hr />
<div>Criminal justice systems can be loosely classified as either common, civil, Islamic or socialist law in nature. However, today many jurisdictions have adopted hybrid models that combine elements of various legal systems. Many of these systems share a common set of [[Core Values | core values]]. In addition, most criminal justice systems have adopted a [[Legality Principle | legality principle]]. Almost every criminal justice system is made of of similar [[Actors in the Criminal Justice System | actors]].<br />
<br />
==Country Pages==<br />
<div style="float: left; width: 33%"><br />
<br />
*[[Afghanistan]]<br />
*[[Albania]]<br />
*[[Algeria]]<br />
*[[Andorra]]<br />
*[[Angola]]<br />
*[[Antigua and Barbuda]]<br />
*[[Argentina]]<br />
*Armenia<br />
*[[Australia]]<br />
*[[Austria]]<br />
*[[Azerbaijan]]<br />
*[[The Bahamas]]<br />
*Bahrain<br />
*[[Bangladesh]]<br />
*Barbados<br />
*[[Belarus]]<br />
*[[Belgium]]<br />
*[[Belize]]<br />
*[[Benin]]<br />
*[[Bhutan]]<br />
*[[Bolivia]]<br />
*[[Bosnia and Herzegovina]]<br />
*[[Botswana]]<br />
*[[Brazil]]<br />
*[[Brunei]]<br />
*[[Bulgaria]]<br />
*[[Burkina Faso]]<br />
*[[Burundi]] <br />
*[[Cambodia]]<br />
*[[Cameroon]]<br />
*[[Canada]]<br />
*[[Cape Verde]]<br />
*[[République Centrafricaine|Central African Republic]]<br />
*[[Chad]]<br />
*[[Chile]]<br />
*[[China]]<br />
**[[Hong Kong]]<br />
**[[Taiwan]]<br />
*[[Colombia]]<br />
*[[Comoros]]<br />
*[[Congo, Democratic Republic of the]]<br />
*[[ République du Congo (Congo-Brazzaville)|Congo, Republic of the]]<br />
*[[Costa Rica]]<br />
*[[Croatia]]<br />
*[[Cuba]]<br />
*[[Cyprus]]<br />
*[[Czech Republic]]<br />
*[[Denmark]]<br />
*Djibouti<br />
*Dominica<br />
*[[Dominican Republic]]<br />
*East Timor<br />
*[[Ecuador]]<br />
*[[Egypt]]<br />
*[[El Salvador]]<br />
*[[Equatorial Guinea]]<br />
*[[Eritrea]]<br />
*Estonia<br />
*[[Ethiopia]]<br />
*Fiji<br />
*[[Finland]]<br />
*[[France]]<br />
**French Guiana<br />
**[[French Polynesia]]<br />
*[[Gabon]]<br />
*[[Gambia, The]]<br />
*[[Georgia]]<br />
<br />
</div><div style="float: left; width:33%"><br />
<br />
*[[Germany]]<br />
*[[Ghana]]<br />
*[[Greece]]<br />
*Grenada<br />
*[[Guatemala]]<br />
*[[Guinea]]<br />
*[[Guinea-Bissau]]<br />
*Guyana<br />
*Haiti<br />
*[[Honduras]]<br />
*[[Hungary]]<br />
*Iceland<br />
*[[India]]<br />
*[[Indonesia]]<br />
*[[Iran]]<br />
*[[Iraq]]<br />
*[[Ireland]]<br />
*[[Island of Guam]]<br />
*[[Israel]]<br />
*[[Italy]]<br />
*[[Côte d’Ivoire|Ivory Coast]]<br />
*[[Jamaica]]<br />
*[[Japan]]<br />
*Jordan<br />
*[[Kazakhstan]]<br />
*[[Kenya]]<br />
*Kiribati<br />
*[[Korea, North]]<br />
*[[South Korea|Korea, South]]<br />
*Kosovo<br />
*Kuwait<br />
*[[Kyrgyzstan]]<br />
*[[Laos]]<br />
*Latvia<br />
*[[Lebanon]]<br />
*[[Lesotho]]<br />
*[[Liberia]]<br />
*Libya<br />
*[[Liechtenstein]]<br />
*[[Lithuania]]<br />
*[[Luxembourg]]<br />
*Macedonia<br />
*[[Madagascar]]<br />
*[[Malawi]]<br />
*[[Malaysia]]<br />
*Maldives<br />
*[[Mali]]<br />
*Malta<br />
*Marshall Islands<br />
*[[Mauritania]]<br />
*[[Mauritius]]<br />
*[[Mexico]]<br />
*Micronesia<br />
*[[Moldova]]<br />
*[[Monaco]]<br />
*[[Mongolia]]<br />
*[[Montenegro]] <br />
*[[Morocco]]<br />
*[[Mozambique]]<br />
*[[Myanmar]]<br />
*[[Namibia]]<br />
*Nauru<br />
*[[Nepal]]<br />
*[[Netherlands]]<br />
*[[New Zealand]]<br />
*[[Nicaragua]]<br />
*[[Niger]]<br />
*[[Nigeria]]<br />
*Norway<br />
*[[Oman]]<br />
<br />
</div><div style="float: left; width: 33%"><br />
<br />
*[[Pakistan]]<br />
*Palau<br />
*Palestine<br />
*[[Panama]]<br />
*[[Papua New Guinea]]<br />
*[[Paraguay]]<br />
*[[Peru]]<br />
*[[Philippines]]<br />
*[[Poland]]<br />
*[[Portugal]]<br />
*[[Qatar]]<br />
*[[Romania]]<br />
*[[Russia]]<br />
*[[Rwanda]]<br />
*Saint Kitts and Nevis<br />
*[[Saint Lucia]]<br />
*Saint Vincent and the Grenadines<br />
*Samoa<br />
*San Marino<br />
*[[São Tomé and Príncipe]]<br />
*[[Saudi Arabia]]<br />
*[[Senegal]]<br />
*[[Serbia]]<br />
*[[Seychelles]]<br />
*[[Sierra Leone]]<br />
*[[Singapore]]<br />
*[[Slovakia]]<br />
*Slovenia<br />
*[[Solomon Islands]]<br />
*[[Somalia]]<br />
*[[South Africa]]<br />
*[[South Sudan]]<br />
*[[Spain]]<br />
*[[Sri Lanka]]<br />
*[[Sudan]]<br />
*Suriname<br />
*[[Swaziland]]<br />
*[[Sweden]]<br />
*[[Switzerland]]<br />
*[[Syria]]<br />
*[[Tajikistan]]<br />
*[[Tanzania]] <br />
**[[Zanzibar]]<br />
*[[Thailand]]<br />
*[[Togo]]<br />
*[[Tonga]]<br />
*[[Trinidad and Tobago]]<br />
*[[Tunisia]]<br />
*[[Turkey]]<br />
*[[Turkmenistan]]<br />
*[[Tuvalu]] <br />
*[[Uganda]] <br />
*[[Ukraine]]<br />
*[[United Arab Emirates]]<br />
*United Kingdom<br />
**[[England and Wales]]<br />
**[[Scotland]]<br />
*[[United States]]<br />
**[[Puerto Rico]]<br />
*[[Uruguay]] <br />
*[[Uzbekistan]]<br />
*[[Vanuatu]]<br />
*[[Venezuela]]<br />
*[[Vietnam]] <br />
*[[Yemen]]<br />
*[[Zambia]]<br />
*[[Zimbabwe]] <br />
<br />
<br />
<br />
</div><br />
<br />
{{Languages|Criminal Justice Systems Around the World}}<br />
<br />
==We need your help==<br />
Can you assist the creation of a country-page? Email elearning@ibj.org.<br />
<br />
----<br />
<br />
See [[Legal Aid Systems and Supporting NGOs around the world]]</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Criminal_Justice_Systems_Around_the_World&diff=381658Criminal Justice Systems Around the World2025-06-23T09:45:07Z<p>IBJadmin: </p>
<hr />
<div>Criminal justice systems can be loosely classified as either common, civil, Islamic or socialist law in nature. However, today many jurisdictions have adopted hybrid models that combine elements of various legal systems. Many of these systems share a common set of [[Core Values | core values]]. In addition, most criminal justice systems have adopted a [[Legality Principle | legality principle]]. Almost every criminal justice system is made of of similar [[Actors in the Criminal Justice System | actors]].<br />
<br />
==Country Pages==<br />
<div style="float: left; width: 33%"><br />
<br />
*[[Afghanistan]]<br />
*[[Albania]]<br />
*[[Algeria]]<br />
*[[Andorra]]<br />
*[[Angola]]<br />
*[[Antigua and Barbuda]]<br />
*[[Argentina]]<br />
*Armenia<br />
*[[Australia]]<br />
*[[Austria]]<br />
*[[Azerbaijan]]<br />
*[[The Bahamas]]<br />
*Bahrain<br />
*[[Bangladesh]]<br />
*Barbados<br />
*[[Belarus]]<br />
*[[Belgium]]<br />
*[[Belize]]<br />
*[[Benin]]<br />
*[[Bhutan]]<br />
*[[Bolivia]]<br />
*[[Bosnia and Herzegovina]]<br />
*[[Botswana]]<br />
*[[Brazil]]<br />
*[[Brunei]]<br />
*[[Bulgaria]]<br />
*[[Burkina Faso]]<br />
*[[Burundi]] <br />
*[[Cambodia]]<br />
*[[Cameroon]]<br />
*[[Canada]]<br />
*[[Cape Verde]]<br />
*[[République Centrafricaine|Central African Republic]]<br />
*[[Chad]]<br />
*[[Chile]]<br />
*[[China]]<br />
**[[Hong Kong]]<br />
**[[Taiwan]]<br />
*[[Colombia]]<br />
*[[Comoros]]<br />
*[[Congo, Democratic Republic of the]]<br />
*[[ République du Congo (Congo-Brazzaville)|Congo, Republic of the]]<br />
*[[Costa Rica]]<br />
*[[Croatia]]<br />
*[[Cuba]]<br />
*[[Cyprus]]<br />
*[[Czech Republic]]<br />
*[[Denmark]]<br />
*Djibouti<br />
*Dominica<br />
*[[Dominican Republic]]<br />
*East Timor<br />
*[[Ecuador]]<br />
*[[Egypt]]<br />
*[[El Salvador]]<br />
*[[Equatorial Guinea]]<br />
*[[Eritrea]]<br />
*Estonia<br />
*[[Ethiopia]]<br />
*Fiji<br />
*[[Finland]]<br />
*[[France]]<br />
**French Guiana<br />
**[[French Polynesia]]<br />
*[[Gabon]]<br />
*[[Gambia, The]]<br />
*[[Georgia]]<br />
<br />
</div><div style="float: left; width:33%"><br />
<br />
*[[Germany]]<br />
*[[Ghana]]<br />
*[[Greece]]<br />
*Grenada<br />
*[[Guatemala]]<br />
*[[Guinea]]<br />
*[[Guinea-Bissau]]<br />
*Guyana<br />
*Haiti<br />
*[[Honduras]]<br />
*[[Hungary]]<br />
*Iceland<br />
*[[India]]<br />
*[[Indonesia]]<br />
*Iran<br />
*[[Iraq]]<br />
*[[Ireland]]<br />
*[[Island of Guam]]<br />
*[[Israel]]<br />
*[[Italy]]<br />
*[[Côte d’Ivoire|Ivory Coast]]<br />
*[[Jamaica]]<br />
*[[Japan]]<br />
*Jordan<br />
*[[Kazakhstan]]<br />
*[[Kenya]]<br />
*Kiribati<br />
*[[Korea, North]]<br />
*[[South Korea|Korea, South]]<br />
*Kosovo<br />
*Kuwait<br />
*[[Kyrgyzstan]]<br />
*[[Laos]]<br />
*Latvia<br />
*[[Lebanon]]<br />
*[[Lesotho]]<br />
*[[Liberia]]<br />
*Libya<br />
*[[Liechtenstein]]<br />
*[[Lithuania]]<br />
*[[Luxembourg]]<br />
*Macedonia<br />
*[[Madagascar]]<br />
*[[Malawi]]<br />
*[[Malaysia]]<br />
*Maldives<br />
*[[Mali]]<br />
*Malta<br />
*Marshall Islands<br />
*[[Mauritania]]<br />
*[[Mauritius]]<br />
*[[Mexico]]<br />
*Micronesia<br />
*[[Moldova]]<br />
*[[Monaco]]<br />
*[[Mongolia]]<br />
*[[Montenegro]] <br />
*[[Morocco]]<br />
*[[Mozambique]]<br />
*[[Myanmar]]<br />
*[[Namibia]]<br />
*Nauru<br />
*[[Nepal]]<br />
*[[Netherlands]]<br />
*[[New Zealand]]<br />
*[[Nicaragua]]<br />
*[[Niger]]<br />
*[[Nigeria]]<br />
*Norway<br />
*[[Oman]]<br />
<br />
</div><div style="float: left; width: 33%"><br />
<br />
*[[Pakistan]]<br />
*Palau<br />
*Palestine<br />
*[[Panama]]<br />
*[[Papua New Guinea]]<br />
*[[Paraguay]]<br />
*[[Peru]]<br />
*[[Philippines]]<br />
*[[Poland]]<br />
*[[Portugal]]<br />
*[[Qatar]]<br />
*[[Romania]]<br />
*[[Russia]]<br />
*[[Rwanda]]<br />
*Saint Kitts and Nevis<br />
*[[Saint Lucia]]<br />
*Saint Vincent and the Grenadines<br />
*Samoa<br />
*San Marino<br />
*[[São Tomé and Príncipe]]<br />
*[[Saudi Arabia]]<br />
*[[Senegal]]<br />
*[[Serbia]]<br />
*[[Seychelles]]<br />
*[[Sierra Leone]]<br />
*[[Singapore]]<br />
*[[Slovakia]]<br />
*Slovenia<br />
*[[Solomon Islands]]<br />
*[[Somalia]]<br />
*[[South Africa]]<br />
*[[South Sudan]]<br />
*[[Spain]]<br />
*[[Sri Lanka]]<br />
*[[Sudan]]<br />
*Suriname<br />
*[[Swaziland]]<br />
*[[Sweden]]<br />
*[[Switzerland]]<br />
*[[Syria]]<br />
*[[Tajikistan]]<br />
*[[Tanzania]] <br />
**[[Zanzibar]]<br />
*[[Thailand]]<br />
*[[Togo]]<br />
*[[Tonga]]<br />
*[[Trinidad and Tobago]]<br />
*[[Tunisia]]<br />
*[[Turkey]]<br />
*[[Turkmenistan]]<br />
*[[Tuvalu]] <br />
*[[Uganda]] <br />
*[[Ukraine]]<br />
*[[United Arab Emirates]]<br />
*United Kingdom<br />
**[[England and Wales]]<br />
**[[Scotland]]<br />
*[[United States]]<br />
**[[Puerto Rico]]<br />
*[[Uruguay]] <br />
*[[Uzbekistan]]<br />
*[[Vanuatu]]<br />
*[[Venezuela]]<br />
*[[Vietnam]] <br />
*[[Yemen]]<br />
*[[Zambia]]<br />
*[[Zimbabwe]] <br />
<br />
<br />
<br />
</div><br />
<br />
{{Languages|Criminal Justice Systems Around the World}}<br />
<br />
==We need your help==<br />
Can you assist the creation of a country-page? Email elearning@ibj.org.<br />
<br />
----<br />
<br />
See [[Legal Aid Systems and Supporting NGOs around the world]]</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Monaco&diff=381657Monaco2025-06-17T10:19:00Z<p>IBJadmin: </p>
<hr />
<div><br />
{{Languages|English}}<br />
<br />
<div class="box" style="padding: 40px; font-size: 1.5em; font-family: Arial, sans-serif; line-height: 1.5; border: 3px solid yellow; background-color: #FFFF00; text-align: center; margin: 30px;"><br />
⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>.<br />
</div><br />
<br />
<br />
{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;"> Legal Resources for Monaco </h2><br />
* Constitution of the Principality of Monaco <ref> https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-REF(2013)021-e<br />
</ref><br />
<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources </h2> <br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
<br />
==Background==<br />
<br />
The Principality of Monaco is a sovereign city-state situated on the Mediterranean Sea along the French Riviera. As the second smallest country in the world, its sovereignty was officially recognized in 1861, and it became a full voting member of the United Nations in 1993. Due to its close geographical and historical ties with France, Monaco’s official language is French, a significant portion of its population is French (approximately 22%), and its legal and constitutional systems are heavily influenced by French law.<br />
Monaco has been governed by the Grimaldi family since the 13th century. Its current Constitution, adopted in 1962, established a constitutional monarchy that guarantees civil liberties while granting the prince strong executive powers. The country also maintains a legislative council and an independent judiciary. Although Monaco is not a member of the European Union, it uses the euro as its official currency.<br />
<br />
<br />
<br><br />
<br />
==The Legal system==<br />
<br />
Monaco is a constitutional monarchy currently with a civil law system governed by the 1962 Constitution which introduced the separation of powers in the Principality. The country’s legal framework is heavily influenced by the French Civil Code.<br />
Court structure: <br />
<br> - Court of First Instance – collegiate court that hears civil and criminal cases<br />
<br> - Court of Appeals – adjudicates on appeals of judgements delivered by the Court of First Instance<br />
<br> - Supreme Court – highest court of law in Monaco for judicial appeals, covers both administrative and constitutional matters<br />
<br />
==Legal Aid==<br />
<br />
Monaco provides state-sponsored legal aid to individuals who cannot afford legal representation (with an income falling below an amount set by Sovereign Ordinance that takes family expenses into account). In criminal cases, if the defendant meets the criteria, legal aid covers court-appointed counsel and legal fees. In 2020 the legal aid budget per inhabitant was 6.40 Euros.<br />
While there is no major NGO sector offering pro bono aid, the Monaco Bar Association manages legal aid appointments. Lawyers registered in the principality must accept appointments when assigned by the court.<br />
The Monaco Bar has a small pool of lawyers which is estimated at 34 lawyers.<br />
<br><br />
<br><br />
<br />
==Source of Defendants Rights==<br />
<br />
<li>'''National Sources of Defendant’s rights:'''<br />
<br />
Monaco’s primary national source for defendant’s rights is the Constitution. Other Codes such as the Criminal Procedure Code and the Penal Code also lay out the rights and freedom afforded to Monegasque nationals.<br />
<br />
<br />
<li>'''International Sources of defendant’s rights:'''<br />
<br />
Monaco ratified the European Convention on Human Rights in 2005. Monaco has also ratified the following UN human rights treaties: <br><br />
- International Covenant on Civil and Political Rights (ICCPR)<br><br />
- International Covenant on Economic, Social and Cultural Rights (ICESCR)<br><br />
- Convention against Torture and Other Cruel, Inhuman, or Degrading Treatments Punishment (CAT)<br><br />
- Convention on the Elimination of All Forms of discrimination Against Women (CEDAW)<br><br />
- Convention on the Rights of Persons with Disabilities (CRPD)<br><br />
- Convention on the Rights of the Child (CRC)<br><br />
- International Convention on the Elimination of All Forms of Racial Discrimination (CERD)<br><br />
<br />
<br />
<br><br />
<br />
==Rights of the Accused==<br />
<br />
<li> '''Right Against Unlawful Arrests, Searches and Seizures:'''<br />
<br />
Constitution (Art. 21) “the domicile is inviolable. No entry and search in the domicile can take place except in cases and in the manner prescribed by law”.<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Unlawful Detention:'''<br />
Constitution (Art. 20) “no penalty may be introduced or applied except by law.”<br />
<br><br />
<br><br />
<li>'''Right Not to be Tortured or Ill-Treated:'''<br />
Constitution (Art. 20) “Criminal law must ensure respect for individual personality and dignity. No one may be subjected to cruel, inhuman or degrading treatment”.<br><br />
<br><br />
<br />
<li>'''Right to Medical Care:'''<br />
Detainees are entitled to medical exams and care during custody and detention.<br />
<br />
<br><br />
<br><br />
<br />
<br />
<li>'''Right to be Informed of Charges:'''<br />
<br />
Constitution (Art. 19) judicial oversight must be ensured “at the arrest or at the latest within twenty-four hours”.<br />
<br><br />
<br><br />
<li>'''Right to Presumption of Innocence:''' <br />
ECHR (Art. 6) “everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law”.<br />
<br><br />
<br><br />
<br />
<br />
<li>'''Right Against Self-Incrimination:'''<br />
<br />
ECHR (Art. 6) a fair trial includes the right to remain silent and the privilege against self-incrimination. However, the privilege against self-incrimination does not extend to the use in criminal proceedings of material which may be obtained from the accused through recourse to compulsory powers, but which has an existence independent of the will of the suspect (for example for DNA testing, fingerprints or blood tests).<br />
<br><br />
<br><br />
<br />
<li>'''Right to Counsel and Effective Assistance:'''<br />
<br />
ECHR (Art. 6 § 3) right to be assisted by a lawyer from the start of police custody. <br />
<br />
<br><br />
<br><br />
<li>'''Right to Present a Defense:''' <br />
Includes right to be informed of charges, right to consult with an attorney, right to be present at trial, right to question witnesses and present evidence.<br />
<br><br />
<br><br />
<li>'''Right to Due Process:'''<br />
<br />
Fundamental right under Constitution and international instruments<br />
<br><br />
<br><br />
<br />
<li>'''Right to Equal Protection of the Laws:'''<br />
<br />
Constitution (Art. 17) “All Monegasques are equal before the law. There is no privilege among them.<br />
<br />
<br><br />
<br><br />
<li>'''Right to Bail:'''<br />
<br />
Monaco has no formalized bail system, bail is granted through judicial oversight and subject to conditions.<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Ex Post Facto Prosecution:'''<br />
<br />
Constitution (Art. 20) “Criminal law cannot have any retroactive effect”.<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Double Jeopardy:'''<br />
<br />
ECHR (Protocol 7, Art. 4) “no one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted”, however this shall not prevent the reopening of the case if there is evidence of new or newly discovered facts or if there has been a fundamental defect in the previous proceedings.<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to a Fair Trial:'''<br />
<br />
<ul><li>Generally: <br />
<br />
guaranteed under constitution and ECHR (Art. 6)<br />
<br />
<br />
<br />
<li>Right to a Trial by Jury:<br />
<br />
exists for criminal offenses, but not in civil cases, ECHR (Art. 6 § 1) “In the determination of any criminal charge against him, everyone is entitled to a public hearing by a tribunal”<br />
<br />
<br />
<li>Right to a Speedy Trial:<br />
<br />
constitutionally implied and reinforced by judicial oversight, ECHR (Art. 6) “in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.<br />
<br />
<br />
<br />
<li>Right to an Impartial Judge: <br />
ECHR (Art. 6) “in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial tribunal established by law”</ul> <br />
<br />
<br />
<br />
<li>'''Right to Language Interpretation:'''<br />
<br />
mandated by ECHR and implemented domestically<br />
<br><br />
<br><br />
<li>'''Right to Habeas Corpus:''' <br />
<br />
Constitution guarantees individual freedom and security, and emphasizes that detention can only be carried out pursuant to a judge’s order.<br />
<br><br />
<br><br />
<br />
<li>'''Capital Punishment:''' <br />
<br />
Constitution (Art. 20) “Death penalty is abolished”<br />
<br><br />
<br><br />
<li>'''Right to Appeal:'''<br />
<br />
the time period for appeals is 30 days from the date the judgment was delivered, unless specific provisions of the law apply. It is lodged by a writ, specifically by an order drawn up by a court bailiff. The appeal suspends the judgement from being enforced, unless provisional enforcement has already been issued.<br />
<br><br />
<br><br />
<br />
==Rights of Counsel==<br />
<br />
'''Right to Provide Representation:''' recognized and obligatory for qualified defense attorneys<br />
<br><br />
<br><br />
'''Right of access to the client:''' guaranteed during police custody and trial<br />
<br><br />
<br><br />
'''Right to information:''' counsel may access case files and evidence prior to and during trial<br />
<br><br />
<br><br />
'''Right to Confidential Communication with the client:''' legally protected and respected in practice<br />
<br><br />
<br><br />
<br />
==Means of Protecting and Enforcing Rights==<br />
<br />
'''Exclusionary Rule:'''<br />
<br />
illegally obtained evidence can be nullified.<br />
<br />
==Pre-Trial Procedure==<br />
<br />
'''Police procedures:''' Complaint/ Information: initiates investigation by Prosecutor General or police<br />
<br />
<li>''Arrest, Search and Seizure Laws:''<br />
<br />
- Stops and Frisks: allowed if the officer reasonably believes the individual is armed or dangerous, individuals have the right to be free from unreasonable searches and seizures, so the frisk cannot be a general search of the person, it must be limited to a search for weapons<br />
<br><br />
- Arrests: police arrests generally require a warrant, and detainees must be presented to an investigating magistrate within 24 hours to be informed of charges and their rights. Police custody cannot exceed 24 hours without judicial authorization<br />
<br><br />
- Pre-trial detention: requires judicial oversight, must be justified and renewed<br />
<br><br />
- Searches: require warrants or judicial authorization<br />
<br><br />
- Enforcing the rules: rights violations can result in nullity or exclusion<br />
<br><br />
<br><br />
'''Lineups and other identification procedures:'''<br />
<br><br />
- Lineups: conducted under judicial oversight<br />
<br><br />
- Other identification procedures: include photo arrays and forensic sampling<br />
<br><br />
<br><br />
<li>'''Interrogation:'''<br />
<br><br />
Before formal charge in court: lawyer must be present<br />
<br> After defendant is formally charged: interrogations supervised by the judge<br />
<br> Enforcing the rule: evidence may be excluded if rights are breached<br />
<br />
<br><br />
<br><br />
<br />
==Court Procedures==<br />
<br />
<li>'''Pre-Trial:'''<br />
<br><br />
- Initial Court Appearance: after an arrest or summons, the accused is brought before the Investigating Judge or the Public Prosecutor depending on the case’s nature. The accused is informed of the alleged offense and their rights (including the right to a lawyer or an interpreter). If detained, the judge must confirm pre-trial detention or order release, within 24 hours. First, a summons is served to the adversary by a Monegasque bailiff. Then, at the first hearing, the defendant’s lawyer informs the court that they represent the defendant, and a new hearing is scheduled by the judge for the defendant to file their written pleadings in response. The parties may exchange a few written pleadings until the judge sets a date for oral pleadings. <br />
<br><br />
- Charging Instrument: criminal charges are formalized either by a Réquisitoire introductive from the Public Prosecutor requesting an investigation or a mise en examen by the Investigating Judge, place a suspect under formal investigation. <br />
<br />
<br><br />
- Preliminary Hearing: in serious cases, the investigating judge conducts a judicial investigation including interrogations, searches, seizure of evidence and gathering witness statements. At this stage the defense has limited rights but can request certain investigative acts (such as confrontations or expert reports). Defense counsel is mandatory during interrogations under indictment. <br />
<br><br />
- Pre-trial motions: the defense may file motions such as request to annul evidence if rights were violated, request for release or bail modification, request for complementary investigative actions. These motions are filed with the Chambre du Conseil or Investigating Judge and reviewed before trial. <br />
<br><br />
- Discovery: Investigating Judge maintains a case dossier containing all the evidence which is accessible to both parties once the indictment is official and can be consulted at the clerk’s office. No obligation to disclose defense strategy or witnesses in advance. <br />
<br />
<br />
<br><br />
<br><br />
<li>'''Trial:'''<br />
<br />
<br> - Nature of the Trial: Monaco follows an inquisitorial system with limited oral arguments, led by professional judges<br />
<br><br />
- Defendant: the defendant must be present at trial, except in minor infractions where representation by a lawyer is permitted. The accused has the right to remain silent, the right to legal counsel and the right to present evidence or witnesses, defendants may make statements at any stage or respond to the Court’s or prosecution’s questions<br />
<br><br />
- Lawyers: both defense and prosecution are typically represented by licensed Monegasque lawyers. The defense lawyer may cross-examine witnesses, present evidence and raise legal objections. Legal aid may be available for indigent defendants though Monaco’s state-sponsored legal aid system. <br />
<br><br />
- Expert witnesses: court-appointed or proposed by parties, often appointed by the court, not hired by the parties, their role is to provide impartial technical analysis (such as forensic, medical or financial)<br />
<br><br />
- Judges: central factfinders, preside and adjudicate, the judge sets the calendar and ensures that no party uses delaying tactics and that the debates are led respectfully. At the pleadings hearing, they may ask some questions for further clarifications, tough Monegasque judges do not typically intervene much.<br />
<br><br />
- Victims: May participate as civil parties seeking damages, the victim can initiate criminal proceedings by filing a formal complaint.<br />
<br><br />
<br><br />
<li>'''Sentencing:'''<br />
determined by judges, guided by Penal Code.<br />
<br />
<br><br />
<br />
==Rights in Prison==<br />
<br />
<br />
<li>'''Right to Humane Conditions of Confinement:'''<br />
<br />
constitutionally guaranteed with laws prohibiting cruel, inhuman or degrading treatment, conditions generally meet standard, CPT monitoring active, the cells meet specific requirements for comfort, hygiene and security, as set forth in Decree No. 2005-8 by the Secretary of Justice, dated June 2005, two walks per day; a morning walk is required, three fitness sessions per week, led by a professional trainer, each inmate may take two showers per day<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Medical Care in Prison:'''<br />
<br />
inmates are entitled to medical healthcare, mirroring the standards available to the general population and therefore have access to a range of healthcare professionals (a dentist, a team of psychiatrists, a psychologist, a hairdresser, a social worker).<br />
<br> <br />
<br><br />
<li>'''Right to Mental Health Care:'''<br />
<br />
La Comella Prison has an attending psychiatrist and psychologist, however, it is recommended by the CPD that their hours be doubled to meet the needs of every prisoner requiring mental health support.<br />
<br />
<br><br />
<br><br />
<li>'''Restriction of rights:'''<br />
<br />
must be proportionate and subject to review, limitations on freedom like the ability to receive and possess personal property, access to sunlight and outdoor exercise space for those detained more than 24 hours. <br />
<br><br />
<br><br />
<li>'''Rights of Special Populations:'''<br />
<br />
<ul><li>''Women'': <br />
<br />
held separately, care provided <br />
<br />
<li>''Juveniles:'' <br />
<br />
held separately; educational upheld, partnership with the Department of Education, Youth and Sport was formed in 2011 to allow juveniles to continue their education and various related activities. <br />
<br />
<li> ''LGBT prisoners:'' general protections apply; no discrimination reported but no specific laws<br />
<br />
<li>''Mentally Ill Prisoners:'' treated in psychiatric facilities as needed. </ul><br />
<br />
<br />
==Resources==<br />
<br />
- Code de Procédure Pénale.” Legimonaco, 2024, legimonaco.mc/code/code-procedure-penale/.<br />
<br />
- “Code Pénal.” Legimonaco, 2024, legimonaco.mc/code/code-penal/.<br />
<br />
- Constitution of the Principality of Monaco. European Commission for Democracy through Law (Venice Commission), 26 Apr. 2013, www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-REF(2013)021-e.<br />
<br />
- European Treaty Series - No. 117.<br />
<br />
- Guide on Article 6 - Right to a Fair Trial (Criminal Limb). 31 Dec. 2013.<br />
<br />
- “Le Tribunal de Première Instance.” Gouv.mc, 2025, www.gouv.mc/Gouvernement-et-Institutions/Les-Institutions/La-Justice/Le-Tribunal-de-Premiere-Instance.<br />
<br />
- “The Court of Appeal - Monaco.” Gouv.mc, 2025, en.gouv.mc/Government-Institutions/Institutions/Justice/The-Court-of-Appeal.<br />
<br />
- The Editors of Encyclopaedia Britannica. “Monaco | History, Points of Interest, & Royal Family | Britannica.” Encyclopædia Britannica, 2020, www.britannica.com/place/Monaco.<br />
<br />
- “The Remand Prison of Monaco.” Gouv.mc, 2025, en.gouv.mc/Government-Institutions/Institutions/Justice/The-Remand-Prison-of-Monaco.<br />
<br />
- “The Supreme Court - Monaco.” En.gouv.mc, en.gouv.mc/Government-Institutions/Institutions/Justice/The-Supreme-court.</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Monaco&diff=381656Monaco2025-06-17T10:18:19Z<p>IBJadmin: </p>
<hr />
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<div class="box" style="padding: 40px; font-size: 1.5em; font-family: Arial, sans-serif; line-height: 1.5; border: 3px solid yellow; background-color: #FFFF00; text-align: center; margin: 30px;"><br />
⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>.<br />
</div><br />
<br />
<br />
{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;"> Legal Resources for Monaco </h2><br />
* Constitution of the Principality of Monaco <ref> www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-REF(2013)021-e.<br />
</ref><br />
<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources </h2> <br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
<br />
==Background==<br />
<br />
The Principality of Monaco is a sovereign city-state situated on the Mediterranean Sea along the French Riviera. As the second smallest country in the world, its sovereignty was officially recognized in 1861, and it became a full voting member of the United Nations in 1993. Due to its close geographical and historical ties with France, Monaco’s official language is French, a significant portion of its population is French (approximately 22%), and its legal and constitutional systems are heavily influenced by French law.<br />
Monaco has been governed by the Grimaldi family since the 13th century. Its current Constitution, adopted in 1962, established a constitutional monarchy that guarantees civil liberties while granting the prince strong executive powers. The country also maintains a legislative council and an independent judiciary. Although Monaco is not a member of the European Union, it uses the euro as its official currency.<br />
<br />
<br />
<br><br />
<br />
==The Legal system==<br />
<br />
Monaco is a constitutional monarchy currently with a civil law system governed by the 1962 Constitution which introduced the separation of powers in the Principality. The country’s legal framework is heavily influenced by the French Civil Code.<br />
Court structure: <br />
<br> - Court of First Instance – collegiate court that hears civil and criminal cases<br />
<br> - Court of Appeals – adjudicates on appeals of judgements delivered by the Court of First Instance<br />
<br> - Supreme Court – highest court of law in Monaco for judicial appeals, covers both administrative and constitutional matters<br />
<br />
==Legal Aid==<br />
<br />
Monaco provides state-sponsored legal aid to individuals who cannot afford legal representation (with an income falling below an amount set by Sovereign Ordinance that takes family expenses into account). In criminal cases, if the defendant meets the criteria, legal aid covers court-appointed counsel and legal fees. In 2020 the legal aid budget per inhabitant was 6.40 Euros.<br />
While there is no major NGO sector offering pro bono aid, the Monaco Bar Association manages legal aid appointments. Lawyers registered in the principality must accept appointments when assigned by the court.<br />
The Monaco Bar has a small pool of lawyers which is estimated at 34 lawyers.<br />
<br><br />
<br><br />
<br />
==Source of Defendants Rights==<br />
<br />
<li>'''National Sources of Defendant’s rights:'''<br />
<br />
Monaco’s primary national source for defendant’s rights is the Constitution. Other Codes such as the Criminal Procedure Code and the Penal Code also lay out the rights and freedom afforded to Monegasque nationals.<br />
<br />
<br />
<li>'''International Sources of defendant’s rights:'''<br />
<br />
Monaco ratified the European Convention on Human Rights in 2005. Monaco has also ratified the following UN human rights treaties: <br><br />
- International Covenant on Civil and Political Rights (ICCPR)<br><br />
- International Covenant on Economic, Social and Cultural Rights (ICESCR)<br><br />
- Convention against Torture and Other Cruel, Inhuman, or Degrading Treatments Punishment (CAT)<br><br />
- Convention on the Elimination of All Forms of discrimination Against Women (CEDAW)<br><br />
- Convention on the Rights of Persons with Disabilities (CRPD)<br><br />
- Convention on the Rights of the Child (CRC)<br><br />
- International Convention on the Elimination of All Forms of Racial Discrimination (CERD)<br><br />
<br />
<br />
<br><br />
<br />
==Rights of the Accused==<br />
<br />
<li> '''Right Against Unlawful Arrests, Searches and Seizures:'''<br />
<br />
Constitution (Art. 21) “the domicile is inviolable. No entry and search in the domicile can take place except in cases and in the manner prescribed by law”.<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Unlawful Detention:'''<br />
Constitution (Art. 20) “no penalty may be introduced or applied except by law.”<br />
<br><br />
<br><br />
<li>'''Right Not to be Tortured or Ill-Treated:'''<br />
Constitution (Art. 20) “Criminal law must ensure respect for individual personality and dignity. No one may be subjected to cruel, inhuman or degrading treatment”.<br><br />
<br><br />
<br />
<li>'''Right to Medical Care:'''<br />
Detainees are entitled to medical exams and care during custody and detention.<br />
<br />
<br><br />
<br><br />
<br />
<br />
<li>'''Right to be Informed of Charges:'''<br />
<br />
Constitution (Art. 19) judicial oversight must be ensured “at the arrest or at the latest within twenty-four hours”.<br />
<br><br />
<br><br />
<li>'''Right to Presumption of Innocence:''' <br />
ECHR (Art. 6) “everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law”.<br />
<br><br />
<br><br />
<br />
<br />
<li>'''Right Against Self-Incrimination:'''<br />
<br />
ECHR (Art. 6) a fair trial includes the right to remain silent and the privilege against self-incrimination. However, the privilege against self-incrimination does not extend to the use in criminal proceedings of material which may be obtained from the accused through recourse to compulsory powers, but which has an existence independent of the will of the suspect (for example for DNA testing, fingerprints or blood tests).<br />
<br><br />
<br><br />
<br />
<li>'''Right to Counsel and Effective Assistance:'''<br />
<br />
ECHR (Art. 6 § 3) right to be assisted by a lawyer from the start of police custody. <br />
<br />
<br><br />
<br><br />
<li>'''Right to Present a Defense:''' <br />
Includes right to be informed of charges, right to consult with an attorney, right to be present at trial, right to question witnesses and present evidence.<br />
<br><br />
<br><br />
<li>'''Right to Due Process:'''<br />
<br />
Fundamental right under Constitution and international instruments<br />
<br><br />
<br><br />
<br />
<li>'''Right to Equal Protection of the Laws:'''<br />
<br />
Constitution (Art. 17) “All Monegasques are equal before the law. There is no privilege among them.<br />
<br />
<br><br />
<br><br />
<li>'''Right to Bail:'''<br />
<br />
Monaco has no formalized bail system, bail is granted through judicial oversight and subject to conditions.<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Ex Post Facto Prosecution:'''<br />
<br />
Constitution (Art. 20) “Criminal law cannot have any retroactive effect”.<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Double Jeopardy:'''<br />
<br />
ECHR (Protocol 7, Art. 4) “no one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted”, however this shall not prevent the reopening of the case if there is evidence of new or newly discovered facts or if there has been a fundamental defect in the previous proceedings.<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to a Fair Trial:'''<br />
<br />
<ul><li>Generally: <br />
<br />
guaranteed under constitution and ECHR (Art. 6)<br />
<br />
<br />
<br />
<li>Right to a Trial by Jury:<br />
<br />
exists for criminal offenses, but not in civil cases, ECHR (Art. 6 § 1) “In the determination of any criminal charge against him, everyone is entitled to a public hearing by a tribunal”<br />
<br />
<br />
<li>Right to a Speedy Trial:<br />
<br />
constitutionally implied and reinforced by judicial oversight, ECHR (Art. 6) “in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.<br />
<br />
<br />
<br />
<li>Right to an Impartial Judge: <br />
ECHR (Art. 6) “in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial tribunal established by law”</ul> <br />
<br />
<br />
<br />
<li>'''Right to Language Interpretation:'''<br />
<br />
mandated by ECHR and implemented domestically<br />
<br><br />
<br><br />
<li>'''Right to Habeas Corpus:''' <br />
<br />
Constitution guarantees individual freedom and security, and emphasizes that detention can only be carried out pursuant to a judge’s order.<br />
<br><br />
<br><br />
<br />
<li>'''Capital Punishment:''' <br />
<br />
Constitution (Art. 20) “Death penalty is abolished”<br />
<br><br />
<br><br />
<li>'''Right to Appeal:'''<br />
<br />
the time period for appeals is 30 days from the date the judgment was delivered, unless specific provisions of the law apply. It is lodged by a writ, specifically by an order drawn up by a court bailiff. The appeal suspends the judgement from being enforced, unless provisional enforcement has already been issued.<br />
<br><br />
<br><br />
<br />
==Rights of Counsel==<br />
<br />
'''Right to Provide Representation:''' recognized and obligatory for qualified defense attorneys<br />
<br><br />
<br><br />
'''Right of access to the client:''' guaranteed during police custody and trial<br />
<br><br />
<br><br />
'''Right to information:''' counsel may access case files and evidence prior to and during trial<br />
<br><br />
<br><br />
'''Right to Confidential Communication with the client:''' legally protected and respected in practice<br />
<br><br />
<br><br />
<br />
==Means of Protecting and Enforcing Rights==<br />
<br />
'''Exclusionary Rule:'''<br />
<br />
illegally obtained evidence can be nullified.<br />
<br />
==Pre-Trial Procedure==<br />
<br />
'''Police procedures:''' Complaint/ Information: initiates investigation by Prosecutor General or police<br />
<br />
<li>''Arrest, Search and Seizure Laws:''<br />
<br />
- Stops and Frisks: allowed if the officer reasonably believes the individual is armed or dangerous, individuals have the right to be free from unreasonable searches and seizures, so the frisk cannot be a general search of the person, it must be limited to a search for weapons<br />
<br><br />
- Arrests: police arrests generally require a warrant, and detainees must be presented to an investigating magistrate within 24 hours to be informed of charges and their rights. Police custody cannot exceed 24 hours without judicial authorization<br />
<br><br />
- Pre-trial detention: requires judicial oversight, must be justified and renewed<br />
<br><br />
- Searches: require warrants or judicial authorization<br />
<br><br />
- Enforcing the rules: rights violations can result in nullity or exclusion<br />
<br><br />
<br><br />
'''Lineups and other identification procedures:'''<br />
<br><br />
- Lineups: conducted under judicial oversight<br />
<br><br />
- Other identification procedures: include photo arrays and forensic sampling<br />
<br><br />
<br><br />
<li>'''Interrogation:'''<br />
<br><br />
Before formal charge in court: lawyer must be present<br />
<br> After defendant is formally charged: interrogations supervised by the judge<br />
<br> Enforcing the rule: evidence may be excluded if rights are breached<br />
<br />
<br><br />
<br><br />
<br />
==Court Procedures==<br />
<br />
<li>'''Pre-Trial:'''<br />
<br><br />
- Initial Court Appearance: after an arrest or summons, the accused is brought before the Investigating Judge or the Public Prosecutor depending on the case’s nature. The accused is informed of the alleged offense and their rights (including the right to a lawyer or an interpreter). If detained, the judge must confirm pre-trial detention or order release, within 24 hours. First, a summons is served to the adversary by a Monegasque bailiff. Then, at the first hearing, the defendant’s lawyer informs the court that they represent the defendant, and a new hearing is scheduled by the judge for the defendant to file their written pleadings in response. The parties may exchange a few written pleadings until the judge sets a date for oral pleadings. <br />
<br><br />
- Charging Instrument: criminal charges are formalized either by a Réquisitoire introductive from the Public Prosecutor requesting an investigation or a mise en examen by the Investigating Judge, place a suspect under formal investigation. <br />
<br />
<br><br />
- Preliminary Hearing: in serious cases, the investigating judge conducts a judicial investigation including interrogations, searches, seizure of evidence and gathering witness statements. At this stage the defense has limited rights but can request certain investigative acts (such as confrontations or expert reports). Defense counsel is mandatory during interrogations under indictment. <br />
<br><br />
- Pre-trial motions: the defense may file motions such as request to annul evidence if rights were violated, request for release or bail modification, request for complementary investigative actions. These motions are filed with the Chambre du Conseil or Investigating Judge and reviewed before trial. <br />
<br><br />
- Discovery: Investigating Judge maintains a case dossier containing all the evidence which is accessible to both parties once the indictment is official and can be consulted at the clerk’s office. No obligation to disclose defense strategy or witnesses in advance. <br />
<br />
<br />
<br><br />
<br><br />
<li>'''Trial:'''<br />
<br />
<br> - Nature of the Trial: Monaco follows an inquisitorial system with limited oral arguments, led by professional judges<br />
<br><br />
- Defendant: the defendant must be present at trial, except in minor infractions where representation by a lawyer is permitted. The accused has the right to remain silent, the right to legal counsel and the right to present evidence or witnesses, defendants may make statements at any stage or respond to the Court’s or prosecution’s questions<br />
<br><br />
- Lawyers: both defense and prosecution are typically represented by licensed Monegasque lawyers. The defense lawyer may cross-examine witnesses, present evidence and raise legal objections. Legal aid may be available for indigent defendants though Monaco’s state-sponsored legal aid system. <br />
<br><br />
- Expert witnesses: court-appointed or proposed by parties, often appointed by the court, not hired by the parties, their role is to provide impartial technical analysis (such as forensic, medical or financial)<br />
<br><br />
- Judges: central factfinders, preside and adjudicate, the judge sets the calendar and ensures that no party uses delaying tactics and that the debates are led respectfully. At the pleadings hearing, they may ask some questions for further clarifications, tough Monegasque judges do not typically intervene much.<br />
<br><br />
- Victims: May participate as civil parties seeking damages, the victim can initiate criminal proceedings by filing a formal complaint.<br />
<br><br />
<br><br />
<li>'''Sentencing:'''<br />
determined by judges, guided by Penal Code.<br />
<br />
<br><br />
<br />
==Rights in Prison==<br />
<br />
<br />
<li>'''Right to Humane Conditions of Confinement:'''<br />
<br />
constitutionally guaranteed with laws prohibiting cruel, inhuman or degrading treatment, conditions generally meet standard, CPT monitoring active, the cells meet specific requirements for comfort, hygiene and security, as set forth in Decree No. 2005-8 by the Secretary of Justice, dated June 2005, two walks per day; a morning walk is required, three fitness sessions per week, led by a professional trainer, each inmate may take two showers per day<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Medical Care in Prison:'''<br />
<br />
inmates are entitled to medical healthcare, mirroring the standards available to the general population and therefore have access to a range of healthcare professionals (a dentist, a team of psychiatrists, a psychologist, a hairdresser, a social worker).<br />
<br> <br />
<br><br />
<li>'''Right to Mental Health Care:'''<br />
<br />
La Comella Prison has an attending psychiatrist and psychologist, however, it is recommended by the CPD that their hours be doubled to meet the needs of every prisoner requiring mental health support.<br />
<br />
<br><br />
<br><br />
<li>'''Restriction of rights:'''<br />
<br />
must be proportionate and subject to review, limitations on freedom like the ability to receive and possess personal property, access to sunlight and outdoor exercise space for those detained more than 24 hours. <br />
<br><br />
<br><br />
<li>'''Rights of Special Populations:'''<br />
<br />
<ul><li>''Women'': <br />
<br />
held separately, care provided <br />
<br />
<li>''Juveniles:'' <br />
<br />
held separately; educational upheld, partnership with the Department of Education, Youth and Sport was formed in 2011 to allow juveniles to continue their education and various related activities. <br />
<br />
<li> ''LGBT prisoners:'' general protections apply; no discrimination reported but no specific laws<br />
<br />
<li>''Mentally Ill Prisoners:'' treated in psychiatric facilities as needed. </ul><br />
<br />
<br />
==Resources==<br />
<br />
- Code de Procédure Pénale.” Legimonaco, 2024, legimonaco.mc/code/code-procedure-penale/.<br />
<br />
- “Code Pénal.” Legimonaco, 2024, legimonaco.mc/code/code-penal/.<br />
<br />
- Constitution of the Principality of Monaco. European Commission for Democracy through Law (Venice Commission), 26 Apr. 2013, www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-REF(2013)021-e.<br />
<br />
- European Treaty Series - No. 117.<br />
<br />
- Guide on Article 6 - Right to a Fair Trial (Criminal Limb). 31 Dec. 2013.<br />
<br />
- “Le Tribunal de Première Instance.” Gouv.mc, 2025, www.gouv.mc/Gouvernement-et-Institutions/Les-Institutions/La-Justice/Le-Tribunal-de-Premiere-Instance.<br />
<br />
- “The Court of Appeal - Monaco.” Gouv.mc, 2025, en.gouv.mc/Government-Institutions/Institutions/Justice/The-Court-of-Appeal.<br />
<br />
- The Editors of Encyclopaedia Britannica. “Monaco | History, Points of Interest, & Royal Family | Britannica.” Encyclopædia Britannica, 2020, www.britannica.com/place/Monaco.<br />
<br />
- “The Remand Prison of Monaco.” Gouv.mc, 2025, en.gouv.mc/Government-Institutions/Institutions/Justice/The-Remand-Prison-of-Monaco.<br />
<br />
- “The Supreme Court - Monaco.” En.gouv.mc, en.gouv.mc/Government-Institutions/Institutions/Justice/The-Supreme-court.</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Monaco&diff=381655Monaco2025-06-17T10:18:01Z<p>IBJadmin: Created page with " {{Languages|English}} <div class="box" style="padding: 40px; font-size: 1.5em; font-family: Arial, sans-serif; line-height: 1.5; border: 3px solid yellow; background-color: #FFFF00; text-align: center; margin: 30px;"> ⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>. </div> {|..."</p>
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{{Languages|English}}<br />
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<div class="box" style="padding: 40px; font-size: 1.5em; font-family: Arial, sans-serif; line-height: 1.5; border: 3px solid yellow; background-color: #FFFF00; text-align: center; margin: 30px;"><br />
⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>.<br />
</div><br />
<br />
<br />
{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;"> Legal Resources for Monaco </h2><br />
* Constitution of the Principality of Monaco <ref> www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-REF(2013)021-e.<br />
<br />
</ref><br />
<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources </h2> <br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
<br />
==Background==<br />
<br />
The Principality of Monaco is a sovereign city-state situated on the Mediterranean Sea along the French Riviera. As the second smallest country in the world, its sovereignty was officially recognized in 1861, and it became a full voting member of the United Nations in 1993. Due to its close geographical and historical ties with France, Monaco’s official language is French, a significant portion of its population is French (approximately 22%), and its legal and constitutional systems are heavily influenced by French law.<br />
Monaco has been governed by the Grimaldi family since the 13th century. Its current Constitution, adopted in 1962, established a constitutional monarchy that guarantees civil liberties while granting the prince strong executive powers. The country also maintains a legislative council and an independent judiciary. Although Monaco is not a member of the European Union, it uses the euro as its official currency.<br />
<br />
<br />
<br><br />
<br />
==The Legal system==<br />
<br />
Monaco is a constitutional monarchy currently with a civil law system governed by the 1962 Constitution which introduced the separation of powers in the Principality. The country’s legal framework is heavily influenced by the French Civil Code.<br />
Court structure: <br />
<br> - Court of First Instance – collegiate court that hears civil and criminal cases<br />
<br> - Court of Appeals – adjudicates on appeals of judgements delivered by the Court of First Instance<br />
<br> - Supreme Court – highest court of law in Monaco for judicial appeals, covers both administrative and constitutional matters<br />
<br />
==Legal Aid==<br />
<br />
Monaco provides state-sponsored legal aid to individuals who cannot afford legal representation (with an income falling below an amount set by Sovereign Ordinance that takes family expenses into account). In criminal cases, if the defendant meets the criteria, legal aid covers court-appointed counsel and legal fees. In 2020 the legal aid budget per inhabitant was 6.40 Euros.<br />
While there is no major NGO sector offering pro bono aid, the Monaco Bar Association manages legal aid appointments. Lawyers registered in the principality must accept appointments when assigned by the court.<br />
The Monaco Bar has a small pool of lawyers which is estimated at 34 lawyers.<br />
<br><br />
<br><br />
<br />
==Source of Defendants Rights==<br />
<br />
<li>'''National Sources of Defendant’s rights:'''<br />
<br />
Monaco’s primary national source for defendant’s rights is the Constitution. Other Codes such as the Criminal Procedure Code and the Penal Code also lay out the rights and freedom afforded to Monegasque nationals.<br />
<br />
<br />
<li>'''International Sources of defendant’s rights:'''<br />
<br />
Monaco ratified the European Convention on Human Rights in 2005. Monaco has also ratified the following UN human rights treaties: <br><br />
- International Covenant on Civil and Political Rights (ICCPR)<br><br />
- International Covenant on Economic, Social and Cultural Rights (ICESCR)<br><br />
- Convention against Torture and Other Cruel, Inhuman, or Degrading Treatments Punishment (CAT)<br><br />
- Convention on the Elimination of All Forms of discrimination Against Women (CEDAW)<br><br />
- Convention on the Rights of Persons with Disabilities (CRPD)<br><br />
- Convention on the Rights of the Child (CRC)<br><br />
- International Convention on the Elimination of All Forms of Racial Discrimination (CERD)<br><br />
<br />
<br />
<br><br />
<br />
==Rights of the Accused==<br />
<br />
<li> '''Right Against Unlawful Arrests, Searches and Seizures:'''<br />
<br />
Constitution (Art. 21) “the domicile is inviolable. No entry and search in the domicile can take place except in cases and in the manner prescribed by law”.<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Unlawful Detention:'''<br />
Constitution (Art. 20) “no penalty may be introduced or applied except by law.”<br />
<br><br />
<br><br />
<li>'''Right Not to be Tortured or Ill-Treated:'''<br />
Constitution (Art. 20) “Criminal law must ensure respect for individual personality and dignity. No one may be subjected to cruel, inhuman or degrading treatment”.<br><br />
<br><br />
<br />
<li>'''Right to Medical Care:'''<br />
Detainees are entitled to medical exams and care during custody and detention.<br />
<br />
<br><br />
<br><br />
<br />
<br />
<li>'''Right to be Informed of Charges:'''<br />
<br />
Constitution (Art. 19) judicial oversight must be ensured “at the arrest or at the latest within twenty-four hours”.<br />
<br><br />
<br><br />
<li>'''Right to Presumption of Innocence:''' <br />
ECHR (Art. 6) “everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law”.<br />
<br><br />
<br><br />
<br />
<br />
<li>'''Right Against Self-Incrimination:'''<br />
<br />
ECHR (Art. 6) a fair trial includes the right to remain silent and the privilege against self-incrimination. However, the privilege against self-incrimination does not extend to the use in criminal proceedings of material which may be obtained from the accused through recourse to compulsory powers, but which has an existence independent of the will of the suspect (for example for DNA testing, fingerprints or blood tests).<br />
<br><br />
<br><br />
<br />
<li>'''Right to Counsel and Effective Assistance:'''<br />
<br />
ECHR (Art. 6 § 3) right to be assisted by a lawyer from the start of police custody. <br />
<br />
<br><br />
<br><br />
<li>'''Right to Present a Defense:''' <br />
Includes right to be informed of charges, right to consult with an attorney, right to be present at trial, right to question witnesses and present evidence.<br />
<br><br />
<br><br />
<li>'''Right to Due Process:'''<br />
<br />
Fundamental right under Constitution and international instruments<br />
<br><br />
<br><br />
<br />
<li>'''Right to Equal Protection of the Laws:'''<br />
<br />
Constitution (Art. 17) “All Monegasques are equal before the law. There is no privilege among them.<br />
<br />
<br><br />
<br><br />
<li>'''Right to Bail:'''<br />
<br />
Monaco has no formalized bail system, bail is granted through judicial oversight and subject to conditions.<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Ex Post Facto Prosecution:'''<br />
<br />
Constitution (Art. 20) “Criminal law cannot have any retroactive effect”.<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Double Jeopardy:'''<br />
<br />
ECHR (Protocol 7, Art. 4) “no one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted”, however this shall not prevent the reopening of the case if there is evidence of new or newly discovered facts or if there has been a fundamental defect in the previous proceedings.<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to a Fair Trial:'''<br />
<br />
<ul><li>Generally: <br />
<br />
guaranteed under constitution and ECHR (Art. 6)<br />
<br />
<br />
<br />
<li>Right to a Trial by Jury:<br />
<br />
exists for criminal offenses, but not in civil cases, ECHR (Art. 6 § 1) “In the determination of any criminal charge against him, everyone is entitled to a public hearing by a tribunal”<br />
<br />
<br />
<li>Right to a Speedy Trial:<br />
<br />
constitutionally implied and reinforced by judicial oversight, ECHR (Art. 6) “in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.<br />
<br />
<br />
<br />
<li>Right to an Impartial Judge: <br />
ECHR (Art. 6) “in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial tribunal established by law”</ul> <br />
<br />
<br />
<br />
<li>'''Right to Language Interpretation:'''<br />
<br />
mandated by ECHR and implemented domestically<br />
<br><br />
<br><br />
<li>'''Right to Habeas Corpus:''' <br />
<br />
Constitution guarantees individual freedom and security, and emphasizes that detention can only be carried out pursuant to a judge’s order.<br />
<br><br />
<br><br />
<br />
<li>'''Capital Punishment:''' <br />
<br />
Constitution (Art. 20) “Death penalty is abolished”<br />
<br><br />
<br><br />
<li>'''Right to Appeal:'''<br />
<br />
the time period for appeals is 30 days from the date the judgment was delivered, unless specific provisions of the law apply. It is lodged by a writ, specifically by an order drawn up by a court bailiff. The appeal suspends the judgement from being enforced, unless provisional enforcement has already been issued.<br />
<br><br />
<br><br />
<br />
==Rights of Counsel==<br />
<br />
'''Right to Provide Representation:''' recognized and obligatory for qualified defense attorneys<br />
<br><br />
<br><br />
'''Right of access to the client:''' guaranteed during police custody and trial<br />
<br><br />
<br><br />
'''Right to information:''' counsel may access case files and evidence prior to and during trial<br />
<br><br />
<br><br />
'''Right to Confidential Communication with the client:''' legally protected and respected in practice<br />
<br><br />
<br><br />
<br />
==Means of Protecting and Enforcing Rights==<br />
<br />
'''Exclusionary Rule:'''<br />
<br />
illegally obtained evidence can be nullified.<br />
<br />
==Pre-Trial Procedure==<br />
<br />
'''Police procedures:''' Complaint/ Information: initiates investigation by Prosecutor General or police<br />
<br />
<li>''Arrest, Search and Seizure Laws:''<br />
<br />
- Stops and Frisks: allowed if the officer reasonably believes the individual is armed or dangerous, individuals have the right to be free from unreasonable searches and seizures, so the frisk cannot be a general search of the person, it must be limited to a search for weapons<br />
<br><br />
- Arrests: police arrests generally require a warrant, and detainees must be presented to an investigating magistrate within 24 hours to be informed of charges and their rights. Police custody cannot exceed 24 hours without judicial authorization<br />
<br><br />
- Pre-trial detention: requires judicial oversight, must be justified and renewed<br />
<br><br />
- Searches: require warrants or judicial authorization<br />
<br><br />
- Enforcing the rules: rights violations can result in nullity or exclusion<br />
<br><br />
<br><br />
'''Lineups and other identification procedures:'''<br />
<br><br />
- Lineups: conducted under judicial oversight<br />
<br><br />
- Other identification procedures: include photo arrays and forensic sampling<br />
<br><br />
<br><br />
<li>'''Interrogation:'''<br />
<br><br />
Before formal charge in court: lawyer must be present<br />
<br> After defendant is formally charged: interrogations supervised by the judge<br />
<br> Enforcing the rule: evidence may be excluded if rights are breached<br />
<br />
<br><br />
<br><br />
<br />
==Court Procedures==<br />
<br />
<li>'''Pre-Trial:'''<br />
<br><br />
- Initial Court Appearance: after an arrest or summons, the accused is brought before the Investigating Judge or the Public Prosecutor depending on the case’s nature. The accused is informed of the alleged offense and their rights (including the right to a lawyer or an interpreter). If detained, the judge must confirm pre-trial detention or order release, within 24 hours. First, a summons is served to the adversary by a Monegasque bailiff. Then, at the first hearing, the defendant’s lawyer informs the court that they represent the defendant, and a new hearing is scheduled by the judge for the defendant to file their written pleadings in response. The parties may exchange a few written pleadings until the judge sets a date for oral pleadings. <br />
<br><br />
- Charging Instrument: criminal charges are formalized either by a Réquisitoire introductive from the Public Prosecutor requesting an investigation or a mise en examen by the Investigating Judge, place a suspect under formal investigation. <br />
<br />
<br><br />
- Preliminary Hearing: in serious cases, the investigating judge conducts a judicial investigation including interrogations, searches, seizure of evidence and gathering witness statements. At this stage the defense has limited rights but can request certain investigative acts (such as confrontations or expert reports). Defense counsel is mandatory during interrogations under indictment. <br />
<br><br />
- Pre-trial motions: the defense may file motions such as request to annul evidence if rights were violated, request for release or bail modification, request for complementary investigative actions. These motions are filed with the Chambre du Conseil or Investigating Judge and reviewed before trial. <br />
<br><br />
- Discovery: Investigating Judge maintains a case dossier containing all the evidence which is accessible to both parties once the indictment is official and can be consulted at the clerk’s office. No obligation to disclose defense strategy or witnesses in advance. <br />
<br />
<br />
<br><br />
<br><br />
<li>'''Trial:'''<br />
<br />
<br> - Nature of the Trial: Monaco follows an inquisitorial system with limited oral arguments, led by professional judges<br />
<br><br />
- Defendant: the defendant must be present at trial, except in minor infractions where representation by a lawyer is permitted. The accused has the right to remain silent, the right to legal counsel and the right to present evidence or witnesses, defendants may make statements at any stage or respond to the Court’s or prosecution’s questions<br />
<br><br />
- Lawyers: both defense and prosecution are typically represented by licensed Monegasque lawyers. The defense lawyer may cross-examine witnesses, present evidence and raise legal objections. Legal aid may be available for indigent defendants though Monaco’s state-sponsored legal aid system. <br />
<br><br />
- Expert witnesses: court-appointed or proposed by parties, often appointed by the court, not hired by the parties, their role is to provide impartial technical analysis (such as forensic, medical or financial)<br />
<br><br />
- Judges: central factfinders, preside and adjudicate, the judge sets the calendar and ensures that no party uses delaying tactics and that the debates are led respectfully. At the pleadings hearing, they may ask some questions for further clarifications, tough Monegasque judges do not typically intervene much.<br />
<br><br />
- Victims: May participate as civil parties seeking damages, the victim can initiate criminal proceedings by filing a formal complaint.<br />
<br><br />
<br><br />
<li>'''Sentencing:'''<br />
determined by judges, guided by Penal Code.<br />
<br />
<br><br />
<br />
==Rights in Prison==<br />
<br />
<br />
<li>'''Right to Humane Conditions of Confinement:'''<br />
<br />
constitutionally guaranteed with laws prohibiting cruel, inhuman or degrading treatment, conditions generally meet standard, CPT monitoring active, the cells meet specific requirements for comfort, hygiene and security, as set forth in Decree No. 2005-8 by the Secretary of Justice, dated June 2005, two walks per day; a morning walk is required, three fitness sessions per week, led by a professional trainer, each inmate may take two showers per day<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Medical Care in Prison:'''<br />
<br />
inmates are entitled to medical healthcare, mirroring the standards available to the general population and therefore have access to a range of healthcare professionals (a dentist, a team of psychiatrists, a psychologist, a hairdresser, a social worker).<br />
<br> <br />
<br><br />
<li>'''Right to Mental Health Care:'''<br />
<br />
La Comella Prison has an attending psychiatrist and psychologist, however, it is recommended by the CPD that their hours be doubled to meet the needs of every prisoner requiring mental health support.<br />
<br />
<br><br />
<br><br />
<li>'''Restriction of rights:'''<br />
<br />
must be proportionate and subject to review, limitations on freedom like the ability to receive and possess personal property, access to sunlight and outdoor exercise space for those detained more than 24 hours. <br />
<br><br />
<br><br />
<li>'''Rights of Special Populations:'''<br />
<br />
<ul><li>''Women'': <br />
<br />
held separately, care provided <br />
<br />
<li>''Juveniles:'' <br />
<br />
held separately; educational upheld, partnership with the Department of Education, Youth and Sport was formed in 2011 to allow juveniles to continue their education and various related activities. <br />
<br />
<li> ''LGBT prisoners:'' general protections apply; no discrimination reported but no specific laws<br />
<br />
<li>''Mentally Ill Prisoners:'' treated in psychiatric facilities as needed. </ul><br />
<br />
<br />
==Resources==<br />
<br />
- Code de Procédure Pénale.” Legimonaco, 2024, legimonaco.mc/code/code-procedure-penale/.<br />
<br />
- “Code Pénal.” Legimonaco, 2024, legimonaco.mc/code/code-penal/.<br />
<br />
- Constitution of the Principality of Monaco. European Commission for Democracy through Law (Venice Commission), 26 Apr. 2013, www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-REF(2013)021-e.<br />
<br />
- European Treaty Series - No. 117.<br />
<br />
- Guide on Article 6 - Right to a Fair Trial (Criminal Limb). 31 Dec. 2013.<br />
<br />
- “Le Tribunal de Première Instance.” Gouv.mc, 2025, www.gouv.mc/Gouvernement-et-Institutions/Les-Institutions/La-Justice/Le-Tribunal-de-Premiere-Instance.<br />
<br />
- “The Court of Appeal - Monaco.” Gouv.mc, 2025, en.gouv.mc/Government-Institutions/Institutions/Justice/The-Court-of-Appeal.<br />
<br />
- The Editors of Encyclopaedia Britannica. “Monaco | History, Points of Interest, & Royal Family | Britannica.” Encyclopædia Britannica, 2020, www.britannica.com/place/Monaco.<br />
<br />
- “The Remand Prison of Monaco.” Gouv.mc, 2025, en.gouv.mc/Government-Institutions/Institutions/Justice/The-Remand-Prison-of-Monaco.<br />
<br />
- “The Supreme Court - Monaco.” En.gouv.mc, en.gouv.mc/Government-Institutions/Institutions/Justice/The-Supreme-court.</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Criminal_Justice_Systems_Around_the_World&diff=381654Criminal Justice Systems Around the World2025-06-17T09:56:30Z<p>IBJadmin: </p>
<hr />
<div>Criminal justice systems can be loosely classified as either common, civil, Islamic or socialist law in nature. However, today many jurisdictions have adopted hybrid models that combine elements of various legal systems. Many of these systems share a common set of [[Core Values | core values]]. In addition, most criminal justice systems have adopted a [[Legality Principle | legality principle]]. Almost every criminal justice system is made of of similar [[Actors in the Criminal Justice System | actors]].<br />
<br />
==Country Pages==<br />
<div style="float: left; width: 33%"><br />
<br />
*[[Afghanistan]]<br />
*[[Albania]]<br />
*[[Algeria]]<br />
*[[Andorra]]<br />
*[[Angola]]<br />
*[[Antigua and Barbuda]]<br />
*[[Argentina]]<br />
*Armenia<br />
*[[Australia]]<br />
*[[Austria]]<br />
*[[Azerbaijan]]<br />
*[[The Bahamas]]<br />
*Bahrain<br />
*[[Bangladesh]]<br />
*Barbados<br />
*[[Belarus]]<br />
*[[Belgium]]<br />
*[[Belize]]<br />
*[[Benin]]<br />
*[[Bhutan]]<br />
*[[Bolivia]]<br />
*[[Bosnia and Herzegovina]]<br />
*[[Botswana]]<br />
*[[Brazil]]<br />
*[[Brunei]]<br />
*[[Bulgaria]]<br />
*[[Burkina Faso]]<br />
*[[Burundi]] <br />
*[[Cambodia]]<br />
*[[Cameroon]]<br />
*[[Canada]]<br />
*[[Cape Verde]]<br />
*[[République Centrafricaine|Central African Republic]]<br />
*[[Chad]]<br />
*[[Chile]]<br />
*[[China]]<br />
**[[Hong Kong]]<br />
**[[Taiwan]]<br />
*[[Colombia]]<br />
*[[Comoros]]<br />
*[[Congo, Democratic Republic of the]]<br />
*[[ République du Congo (Congo-Brazzaville)|Congo, Republic of the]]<br />
*[[Costa Rica]]<br />
*[[Croatia]]<br />
*[[Cuba]]<br />
*[[Cyprus]]<br />
*[[Czech Republic]]<br />
*[[Denmark]]<br />
*Djibouti<br />
*Dominica<br />
*[[Dominican Republic]]<br />
*East Timor<br />
*[[Ecuador]]<br />
*[[Egypt]]<br />
*[[El Salvador]]<br />
*[[Equatorial Guinea]]<br />
*[[Eritrea]]<br />
*Estonia<br />
*[[Ethiopia]]<br />
*Fiji<br />
*[[Finland]]<br />
*[[France]]<br />
**French Guiana<br />
**[[French Polynesia]]<br />
*[[Gabon]]<br />
*[[Gambia, The]]<br />
*[[Georgia]]<br />
<br />
</div><div style="float: left; width:33%"><br />
<br />
*[[Germany]]<br />
*[[Ghana]]<br />
*[[Greece]]<br />
*Grenada<br />
*[[Guatemala]]<br />
*[[Guinea]]<br />
*[[Guinea-Bissau]]<br />
*Guyana<br />
*Haiti<br />
*[[Honduras]]<br />
*[[Hungary]]<br />
*Iceland<br />
*[[India]]<br />
*[[Indonesia]]<br />
*Iran<br />
*[[Iraq]]<br />
*[[Ireland]]<br />
*[[Island of Guam]]<br />
*[[Israel]]<br />
*[[Italy]]<br />
*[[Côte d’Ivoire|Ivory Coast]]<br />
*[[Jamaica]]<br />
*[[Japan]]<br />
*Jordan<br />
*[[Kazakhstan]]<br />
*[[Kenya]]<br />
*Kiribati<br />
*[[Korea, North]]<br />
*[[South Korea|Korea, South]]<br />
*Kosovo<br />
*Kuwait<br />
*[[Kyrgyzstan]]<br />
*[[Laos]]<br />
*Latvia<br />
*[[Lebanon]]<br />
*[[Lesotho]]<br />
*[[Liberia]]<br />
*Libya<br />
*[[Liechtenstein]]<br />
*[[Lithuania]]<br />
*[[Luxembourg]]<br />
*Macedonia<br />
*[[Madagascar]]<br />
*[[Malawi]]<br />
*[[Malaysia]]<br />
*Maldives<br />
*[[Mali]]<br />
*Malta<br />
*Marshall Islands<br />
*[[Mauritania]]<br />
*[[Mauritius]]<br />
*[[Mexico]]<br />
*Micronesia<br />
*[[Moldova]]<br />
*[[Monaco]]<br />
*[[Mongolia]]<br />
*[[Montenegro]] <br />
*[[Morocco]]<br />
*[[Mozambique]]<br />
*[[Myanmar]]<br />
*[[Namibia]]<br />
*Nauru<br />
*[[Nepal]]<br />
*[[Netherlands]]<br />
*[[New Zealand]]<br />
*[[Nicaragua]]<br />
*[[Niger]]<br />
*[[Nigeria]]<br />
*Norway<br />
*[[Oman]]<br />
<br />
</div><div style="float: left; width: 33%"><br />
<br />
*[[Pakistan]]<br />
*Palau<br />
*Palestine<br />
*[[Panama]]<br />
*[[Papua New Guinea]]<br />
*[[Paraguay]]<br />
*[[Peru]]<br />
*[[Philippines]]<br />
*[[Poland]]<br />
*[[Portugal]]<br />
*[[Qatar]]<br />
*[[Romania]]<br />
*[[Russia]]<br />
*[[Rwanda]]<br />
*Saint Kitts and Nevis<br />
*[[Saint Lucia]]<br />
*Saint Vincent and the Grenadines<br />
*Samoa<br />
*San Marino<br />
*[[São Tomé and Príncipe]]<br />
*[[Saudi Arabia]]<br />
*[[Senegal]]<br />
*[[Serbia]]<br />
*[[Seychelles]]<br />
*[[Sierra Leone]]<br />
*[[Singapore]]<br />
*[[Slovakia]]<br />
*Slovenia<br />
*[[Solomon Islands]]<br />
*[[Somalia]]<br />
*[[South Africa]]<br />
*[[South Sudan]]<br />
*[[Spain]]<br />
*[[Sri Lanka]]<br />
*[[Sudan]]<br />
*Suriname<br />
*[[Swaziland]]<br />
*[[Sweden]]<br />
*[[Switzerland]]<br />
*[[Syria]]<br />
*[[Tajikistan]]<br />
*[[Tanzania]] <br />
**[[Zanzibar]]<br />
*[[Thailand]]<br />
*[[Togo]]<br />
*[[Tonga]]<br />
*[[Trinidad and Tobago]]<br />
*[[Tunisia]]<br />
*[[Turkey]]<br />
*[[Turkmenistan]]<br />
*[[Tuvalu]] <br />
*[[Uganda]] <br />
*[[Ukraine]]<br />
*[[United Arab Emirates]]<br />
*United Kingdom<br />
**[[England and Wales]]<br />
**[[Scotland]]<br />
*[[United States]]<br />
**[[Puerto Rico]]<br />
*[[Uruguay]] <br />
*[[Uzbekistan]]<br />
*Vanuatu<br />
*[[Venezuela]]<br />
*[[Vietnam]] <br />
*[[Yemen]]<br />
*[[Zambia]]<br />
*[[Zimbabwe]] <br />
<br />
<br />
<br />
</div><br />
<br />
{{Languages|Criminal Justice Systems Around the World}}<br />
<br />
==We need your help==<br />
Can you assist the creation of a country-page? Email elearning@ibj.org.<br />
<br />
----<br />
<br />
See [[Legal Aid Systems and Supporting NGOs around the world]]</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Liechtenstein&diff=381653Liechtenstein2025-06-17T08:17:36Z<p>IBJadmin: </p>
<hr />
<div><br />
{{Languages|English}}<br />
<br />
<div class="box" style="padding: 40px; font-size: 1.5em; font-family: Arial, sans-serif; line-height: 1.5; border: 3px solid yellow; background-color: #FFFF00; text-align: center; margin: 30px;"><br />
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<br />
{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;"> Legal Resources for Liechtenstein </h2><br />
* Constitution of Liechtenstein <ref> https://www.constituteproject.org/constitution/Liechtenstein_2011<br />
</ref><br />
<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources </h2> <br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
<br />
==Background==<br />
<br />
Liechtenstein is a microstate located in Central Europe, bordered by Austria and Switzerland. It is a constitutional monarchy with their Prince serving as the Chief of State and the Prime Minister as the Head of Government. Since abolishing its standing army, Liechtenstein has relied on Switzerland for national defense since 1868.<br />
<br />
<br><br />
<br />
==The Legal system==<br />
<br />
Liechtenstein follows a civil law system derived from statute. Its legal system is heavily influenced by Austrian law, Swiss law also provides a framework for certain legal areas such as property, company, and administrative law. Judicial decisions do not serve as binding precedent, which is typical in civil law traditions, though they may be referenced as justification for decisions. <br />
The court system is made up of three instances: beginning with the first instance District Court, the second being the Superior Court, and the final instance Supreme Court. In exceptional cases, there is a fourth instance, the Constitutional Court. Criminal trials may involve a single judge or, for more serious offenses, have a panel of five, three being lay assessors. <br />
<br />
<br />
<br />
==Legal Aid==<br />
<br />
Liechtenstein provides generous legal aid to all natural persons. Aid may be used to cover all or partial legal fees, including court fees and attorney compensation, which is paid according to a statutory schedule. It is granted if there is a reasonable case or controversy at issue and a financial need. Due to the country’s affluence and the comprehensive legal aid provided by the government, pro bono work is rare and not required of the 261 registered attorneys in the country. There are no prominent NGOs that provide financial support or free legal services. There are 261 total attorneys in the country, a specific breakdown of the area of practice is unknown.<br />
<br />
==Source of Defendants Rights==<br />
<br />
<li>'''National Sources of Defendant’s rights:'''<br />
<br />
Defendant’s rights are rooted in the Constitution of Liechtenstein. Articles 33 and 34 lay out the criminal procedure in the country. <br />
<br />
<br />
<br />
<li>'''International Sources of defendant’s rights:'''<br />
<br><br />
International frameworks are also used to ensure justice, including the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR).<br />
<br><br />
<br />
==Rights of the Accused==<br />
<br />
<li> '''Right Against Unlawful Arrests, Searches and Seizures:'''<br />
<br />
The accused have a right against unlawful arrests, searches, and seizures; they must be informed immediately of the charges against them and of their rights. Arrest warrants are issued by the national court. Within 48 hours of arrest, the suspect must be brought before the magistrate who must decide to file formal charges or order a release.<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Unlawful Detention:'''<br />
a. Unlawful detention is not permitted, pretrial detention is limited and is reviewed on regular intervals to ensure rights are not being abused. Pre-trial detention is initially 14 days and after review may be extended to one month and additionally to two months.<br />
<br />
<br><br />
<br><br />
<li>'''Right Not to be Tortured or Ill-Treated:'''<br />
a. While imprisoned, individuals are not to be tortured or treated poorly, which is strictly enforced under the Police Act and explicitly prohibited. There are currently no reports of government officials employing these practices in Liechtenstein.<br />
<br><br />
<br><br />
<br />
<li>'''Right to Medical Care:'''<br />
Medical care is guaranteed under law for all those detained in Liechtenstein under the Enforcement of Sentences Act.<br />
<br><br />
<br><br />
<br />
<br />
<li>'''Right to be Informed of Charges:'''<br />
<br />
Defendants must be informed of the charges against them and their rights at the time of arrest.<br />
<br><br />
<br><br />
<li>'''Right to Presumption of Innocence:''' <br />
The Liechtenstein Constitution affords a presumption of innocence to all defendants until proven guilty.<br />
<br />
<br><br />
<br><br />
<br />
<br />
<li>'''Right Against Self-Incrimination:'''<br />
<br />
Defendants have the right to remain silent and are not compelled to testify against themselves. <br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Counsel and Effective Assistance:'''<br />
<br />
a. Legal aid is state-administered and allows individuals to have access to competent counsel if they are unable to afford an attorney themselves and are also entitled to free language interpretation. <br />
<br />
<br><br />
<br><br />
<li>'''Right to Present a Defense:''' <br />
Petitioners are allowed to formulate a defense with access to evidence and may bring in witness testimony to corroborate their argument.<br />
<br />
<br><br />
<br><br />
<li>'''Right to Due Process:'''<br />
<br />
Due process is a constitutional right, there are safeguards in place to ensure that proper procedure is being followed. <br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Equal Protection of the Laws:'''<br />
<br />
The Constitution guarantees equal treatment of all citizen.<br />
<br />
<br />
<br><br />
<br><br />
<li>'''Right to Bail:'''<br />
<br />
The Criminal Procedure Code provides for bail under certain conditions, including the possibility of arrest if the accused attempts to flee release.<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Ex Post Facto Prosecution:'''<br />
<br />
The Constitution prohibits retroactive criminal laws.<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Double Jeopardy:'''<br />
<br />
The legal system upholds the principle that no one shall be tried or punished again for an offense for which they have already been fully convicted or acquitted.<br />
<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to a Fair Trial:'''<br />
<br />
<ul><li>Generally: <br />
<br />
Defendants have the right to a fair trial that is prompt and impartial.<br />
<br />
<br />
<br />
<li>Right to a Trial by Jury:<br />
<br />
Liechtenstein does not have a jury system; instead, a judge or panel of judges adjudicates cases. <br />
<br />
<br />
<br />
<li>Right to a Speedy Trial:<br />
<br />
Trial should be conducted without undue delay.<br />
<br />
<br />
<br />
<li>Right to an Impartial Judge: <br />
<br />
Judges must be impartial.</ul> <br />
<br />
<br />
<br />
<li>'''Right to Language Interpretation:'''<br />
<br />
Language interpretation may be offered for free through the appeals process.<br />
<br />
<br><br />
<br><br />
<li>'''Right to Habeas Corpus:''' <br />
<br />
Individuals have a right to challenge the legality of their detention. <br />
<br><br />
<br><br />
<br />
<li>'''Capital Punishment:''' <br />
<br />
The death penalty was abolished in Liechtenstein in 1989.<br />
<br />
<br><br />
<br><br />
<li>'''Right to Appeal:'''<br />
<br />
Appeals may be made on procedural, factual, and legal grounds.<br />
<br />
<br><br />
<br><br />
<br />
==Rights of Counsel==<br />
<br />
A. Right to Provide Representation: <br />
Legal counsel has a right to provide representation to the accused.<br />
<br />
B. Right of Access to the Client: <br />
Attorneys are guaranteed access to their client.<br />
<br />
C. Right to Information: <br />
Attorneys have a right to access information necessary for their defense. <br />
<br />
D. Right to Confidential Communication with the Client:<br />
Information between attorney and client is considered privileged and is protected under civil and criminal codes. <br />
<br />
<br><br />
<br />
==Means of Protecting and Enforcing Rights==<br />
<br />
'''Exclusionary Rule:'''<br />
<br />
Exclusion of unlawfully obtained evidence.<br />
<br />
'''Nullity of Procedure:'''<br />
<br />
Procedural errors can lead to the nullification of proceedings. <br />
<br />
'''Motions:'''<br />
<br />
Defendants can file motions to challenge aspects of the prosecution’s case.<br />
<br />
'''Contempt proceedings:'''<br />
Individuals may be held in contempt for actions that disrespect the court or obstruct justice. <br />
<br />
'''Civil Actions:'''<br />
Civil law claims of the injured party may be addressed during criminal proceedings unless further elaboration requires referral to civil litigation<br />
<br />
<br><br />
==Pre-Trial Procedure==<br />
<br />
'''Police procedures'''<br />
<br />
<li>''Complaint:'' <br />
<br />
The Office of the Public Prosecutor us ex officio responsible for investigating and prosecuting all criminal offences of which it gains knowledge<br />
<br />
<li>''Arrest, Search and Seizure Laws:''<br />
<ul><br />
a. Stop and Frisks: Police must inform the suspect of the charges they face and their rights upon arrest; communication is immediate. <br />
<br><br />
b. Arrests: Arrest warrants are issued by the national court. <br />
<br><br />
c. Pre-trial detention: Initially 14 days and may be extended upon review. <br />
<br> <br />
d. Searches: Conducted based on a judicial warrant, which must be served upon the person concerned either immediately or within the 24 hours. <br />
<br><br />
e. Enforcing the Rules (Exclusionary Rule, Nullity and other procedures to protect against illegal police procedures): Evidence obtained unlawfully must be excluded.</ul><br />
<br />
<li>''Interrogation:''<br />
<ul><br />
a. Before Formal Charge in Court: Suspects have the right to remain silent and the right to legal counsel at all stages. <br />
<br><br />
b. After Defendant is Formally Charged: The same rights apply, ensuring protection against self-incrimination. <br />
<br><br />
c. Enforcement: Procedures are in place to protect against illegal interrogation </ul><br />
<br><br />
<br><br />
<br />
==Court Procedures==<br />
<br />
<li>'''Pre-Trial:'''<br />
<ul>A. Initial Court Appearance: Police must bring the arrested person in front of the magistrate within 48 hours for formal charges or release to be determined. <br />
<br><br />
B. Charging Instrument: The prosecutor must submit a formal bill of indictment to the criminal tribunal. <br />
<br><br />
C. Preliminary Hearing: There is no formal pre-trial that occurs other than what has been mentioned above in terms of arrest and detention. <br />
<br> <br />
D. Pre-Trial Motions: Defendants can file motions to challenge aspects of the prosecution’s case.<br />
<br><br />
E. Discovery: Investigating judge shall, at the accused request, permit him to inspect and make copies of the files of the criminal proceedings.<br />
<br>There is no formal pretrial discovery or hearing process beyond arrest-related procedures. Police must inform suspects immediately of the charges and their rights upon arrest, including the right to counsel and the right to remain silent. Use of force is regulated by law, with firearms being permitted under strict conditions. Pre-trial detention is limited, initially 14 days, after review, it may be extended to one month, after more review it may be additionally extended to two months. </ul><br />
<br />
<br><br />
<li>'''Trial:'''<br />
<ul><br />
A. Nature of the Trial: Generally public, except for some exceptions, including public morality, safety, or to protect sensitive personal or business information. <br />
<br><br />
B. Defendant: Right to be present and participate in their defense. <br><br />
C. Lawyers: Granted full access to client and relevant case files. <br><br />
D. Expert Witnesses: Liechtenstein permits expert evidence where specialized knowledge is needed. <br><br />
E. Judges: Appointed to their position and serve as sole factfinder in most cases since there is no jury. <br><br />
F. Victims: Referred to as “injured parties,” can participate in criminal proceedings to an extent. <br><br />
<ul>a. Right to be Heard: Can provide testimony, file civil claims for damages within the criminal trial, and request to be informed of developments in the case.<br><br />
b. Right to Protection: Protective measures are offered to vulnerable victims, including minors and those impacted by sexual violence or domestic abuse.<br><br />
c. Legal Representation: Allowed counsel when they are seeking damages. <br><br />
d. Confidentiality: Proceedings may be closed to the public to ensure victim privacy.<br><br />
e. Restitution and Compensation: Have the choice to be compensated through the criminal court as a joined civil claim or file a separate civil suit.</ul></ul><br />
<br />
<br><br />
<li>'''Sentencing:'''<br />
<br />
Sentencing is determined by the judge following conviction. There is no jury, so the Penal Code is used to determine applicable penalties; including: fines, suspended sentences, community service, and imprisonment. Factors that are considered are the gravity of the offense, the circumstances of the defendant, and any mitigating or aggravating elements. <br />
<br><br />
<br><br />
<br />
<li>'''Appeals:'''<br />
<br><br />
A. Right to Counsel: Retain access to counsel during the appellate process. <br />
<ul>a. Grounds for Appeal: Procedural errors, incorrect application of substantive law, errors of fact, contradictions between findings and court files, nullity, ineffective assistance of counsel.<br><br />
b. Collateral Remedies (Habeas): Judicial review is a pillar of the law in Liechtenstein.</ul><br />
Appeals can be filed on procedural, factual, and legal grounds, with the possibility of escalation to the Supreme Court<br />
<br />
<br><br />
<br />
==Rights in Prison==<br />
<br />
<br />
<li>'''Right to Humane Conditions of Confinement:'''<br />
<br />
a. Facilities must uphold basic living standards.<br />
b. Overcrowding is not a concern due to the country’s small population. <br />
c. Liechtenstein operates a single short-term detention facility with a 20-bed capacity.<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Immigrant’s Rights in Detention:''' Immigrants are entitled to the same protections under Liechtenstein’s law and the ECHR.<br />
<br><br />
<br><br />
<br />
<li>'''Right to Medical Care in Prison:'''<br />
<br />
Inmates are guaranteed access to physical health services under Article 125(5) of the Enforcement of Sentences Act.<br />
<br />
<br> <br />
<br><br />
<li>'''Right to Mental Health Care:'''<br />
<br />
Mental health services are required by law, although the scale of provision may be limited due to facility size.<br />
<br />
<br><br />
<br><br />
<li>'''Restriction of rights:'''<br />
<br />
Restrictions of prisoners’ rights must be proportionate, lawful, and serve a legitimate correctional purpose<br />
<br><br />
<br><br />
<li>'''Rights of Special Populations:'''<br />
<br />
<ul><li>''Women'': <br />
<br />
Have a separate section in the prison, comprising of just four beds<br />
<li>''Juveniles:'' <br />
<br />
Typically detained in Austria; creating issues related to distance from family and social support.</ul><br />
<br />
<br />
==Resources==<br />
<br />
- “Liechtenstein.” Encyclopaedia Britannica, https://www.britannica.com/place/Liechtenstein<br />
<br />
- Legalink. “Liechtenstein Anticorruption Laws.” 2013, https://legalink.net/.../Liechtenstein_Anticorruption_Laws_LEGALINK2013 <br />
<br />
- U.S. Department of State. “Liechtenstein Human Rights Report.” https://www.state.gov/.../Liechtenstein-1.pdf<br />
<br />
- Pro Bono Institute. “Pro Bono in Liechtenstein.” https://www.probonoinst.org/.../liechtenstein.pdf<br />
<br />
- Financial Market Authority Liechtenstein. “Attorneys at Law.” https://finance.li/en/attorneys-at-law/<br />
<br />
- “Liechtenstein 2011 Constitution.” Constitution Project, https://www.constituteproject.org/.../Liechtenstein_2011<br />
<br />
- Liechtenstein Government. “CAT Submission Document.” https://www.llv.li/.../pdf-llv-aaa-folter-cat3_engl.pdf<br />
<br />
- Policing Law: Liechtenstein. https://www.policinglaw.info/country/liechtenstein<br />
<br />
- UNHCR Refworld. “Liechtenstein 2017 Human Rights Report.” https://www.refworld.org/reference/annualreport/usdos/2017/en/116375<br />
<br />
- Enforcement of Sentences Act, Art. 125(5).<br />
<br />
- U.S. Department of State. “Liechtenstein 2017 Human Rights Report.” https://www.state.gov/reports/.../liechtenstein/<br />
<br />
- Liechtenstein Criminal Procedure Code 1987 (as amended 2017). https://legislationline.org/sites/default/files/documents/10/Liechtenstein_Criminal_Procedure_Code_1987_am2017_en.pdf<br />
<br />
- Global Legal Insights. https://www.globallegalinsights.com/.../liechtenstein<br />
<br />
- Chambers Practice Guides. https://practiceguides.chambers.com/.../litigation-2025<br />
<br />
- https://legislationline.org/sites/default/files/documents/10/Liechtenstein_Criminal_Procedure_Code_1987_am2017_en.pdf<br />
<br />
- U.S. Department of State, Human Rights Practices Report 2022. https://www.state.gov/.../liechtenstein/</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Liechtenstein&diff=381652Liechtenstein2025-06-17T08:17:00Z<p>IBJadmin: Created page with " {{Languages|English}} <div class="box" style="padding: 40px; font-size: 1.5em; font-family: Arial, sans-serif; line-height: 1.5; border: 3px solid yellow; background-color: #FFFF00; text-align: center; margin: 30px;"> ⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>. </div> {|..."</p>
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{{Languages|English}}<br />
<br />
<div class="box" style="padding: 40px; font-size: 1.5em; font-family: Arial, sans-serif; line-height: 1.5; border: 3px solid yellow; background-color: #FFFF00; text-align: center; margin: 30px;"><br />
⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>.<br />
</div><br />
<br />
<br />
{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;"> Legal Resources for Liechtenstein </h2><br />
* Constitution of Liechtenstein <ref> https://www.constituteproject.org/.../Liechtenstein_2011<br />
</ref><br />
<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources </h2> <br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
<br />
==Background==<br />
<br />
Liechtenstein is a microstate located in Central Europe, bordered by Austria and Switzerland. It is a constitutional monarchy with their Prince serving as the Chief of State and the Prime Minister as the Head of Government. Since abolishing its standing army, Liechtenstein has relied on Switzerland for national defense since 1868.<br />
<br />
<br><br />
<br />
==The Legal system==<br />
<br />
Liechtenstein follows a civil law system derived from statute. Its legal system is heavily influenced by Austrian law, Swiss law also provides a framework for certain legal areas such as property, company, and administrative law. Judicial decisions do not serve as binding precedent, which is typical in civil law traditions, though they may be referenced as justification for decisions. <br />
The court system is made up of three instances: beginning with the first instance District Court, the second being the Superior Court, and the final instance Supreme Court. In exceptional cases, there is a fourth instance, the Constitutional Court. Criminal trials may involve a single judge or, for more serious offenses, have a panel of five, three being lay assessors. <br />
<br />
<br />
<br />
==Legal Aid==<br />
<br />
Liechtenstein provides generous legal aid to all natural persons. Aid may be used to cover all or partial legal fees, including court fees and attorney compensation, which is paid according to a statutory schedule. It is granted if there is a reasonable case or controversy at issue and a financial need. Due to the country’s affluence and the comprehensive legal aid provided by the government, pro bono work is rare and not required of the 261 registered attorneys in the country. There are no prominent NGOs that provide financial support or free legal services. There are 261 total attorneys in the country, a specific breakdown of the area of practice is unknown.<br />
<br />
==Source of Defendants Rights==<br />
<br />
<li>'''National Sources of Defendant’s rights:'''<br />
<br />
Defendant’s rights are rooted in the Constitution of Liechtenstein. Articles 33 and 34 lay out the criminal procedure in the country. <br />
<br />
<br />
<br />
<li>'''International Sources of defendant’s rights:'''<br />
<br><br />
International frameworks are also used to ensure justice, including the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR).<br />
<br><br />
<br />
==Rights of the Accused==<br />
<br />
<li> '''Right Against Unlawful Arrests, Searches and Seizures:'''<br />
<br />
The accused have a right against unlawful arrests, searches, and seizures; they must be informed immediately of the charges against them and of their rights. Arrest warrants are issued by the national court. Within 48 hours of arrest, the suspect must be brought before the magistrate who must decide to file formal charges or order a release.<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Unlawful Detention:'''<br />
a. Unlawful detention is not permitted, pretrial detention is limited and is reviewed on regular intervals to ensure rights are not being abused. Pre-trial detention is initially 14 days and after review may be extended to one month and additionally to two months.<br />
<br />
<br><br />
<br><br />
<li>'''Right Not to be Tortured or Ill-Treated:'''<br />
a. While imprisoned, individuals are not to be tortured or treated poorly, which is strictly enforced under the Police Act and explicitly prohibited. There are currently no reports of government officials employing these practices in Liechtenstein.<br />
<br><br />
<br><br />
<br />
<li>'''Right to Medical Care:'''<br />
Medical care is guaranteed under law for all those detained in Liechtenstein under the Enforcement of Sentences Act.<br />
<br><br />
<br><br />
<br />
<br />
<li>'''Right to be Informed of Charges:'''<br />
<br />
Defendants must be informed of the charges against them and their rights at the time of arrest.<br />
<br><br />
<br><br />
<li>'''Right to Presumption of Innocence:''' <br />
The Liechtenstein Constitution affords a presumption of innocence to all defendants until proven guilty.<br />
<br />
<br><br />
<br><br />
<br />
<br />
<li>'''Right Against Self-Incrimination:'''<br />
<br />
Defendants have the right to remain silent and are not compelled to testify against themselves. <br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Counsel and Effective Assistance:'''<br />
<br />
a. Legal aid is state-administered and allows individuals to have access to competent counsel if they are unable to afford an attorney themselves and are also entitled to free language interpretation. <br />
<br />
<br><br />
<br><br />
<li>'''Right to Present a Defense:''' <br />
Petitioners are allowed to formulate a defense with access to evidence and may bring in witness testimony to corroborate their argument.<br />
<br />
<br><br />
<br><br />
<li>'''Right to Due Process:'''<br />
<br />
Due process is a constitutional right, there are safeguards in place to ensure that proper procedure is being followed. <br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Equal Protection of the Laws:'''<br />
<br />
The Constitution guarantees equal treatment of all citizen.<br />
<br />
<br />
<br><br />
<br><br />
<li>'''Right to Bail:'''<br />
<br />
The Criminal Procedure Code provides for bail under certain conditions, including the possibility of arrest if the accused attempts to flee release.<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Ex Post Facto Prosecution:'''<br />
<br />
The Constitution prohibits retroactive criminal laws.<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Double Jeopardy:'''<br />
<br />
The legal system upholds the principle that no one shall be tried or punished again for an offense for which they have already been fully convicted or acquitted.<br />
<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to a Fair Trial:'''<br />
<br />
<ul><li>Generally: <br />
<br />
Defendants have the right to a fair trial that is prompt and impartial.<br />
<br />
<br />
<br />
<li>Right to a Trial by Jury:<br />
<br />
Liechtenstein does not have a jury system; instead, a judge or panel of judges adjudicates cases. <br />
<br />
<br />
<br />
<li>Right to a Speedy Trial:<br />
<br />
Trial should be conducted without undue delay.<br />
<br />
<br />
<br />
<li>Right to an Impartial Judge: <br />
<br />
Judges must be impartial.</ul> <br />
<br />
<br />
<br />
<li>'''Right to Language Interpretation:'''<br />
<br />
Language interpretation may be offered for free through the appeals process.<br />
<br />
<br><br />
<br><br />
<li>'''Right to Habeas Corpus:''' <br />
<br />
Individuals have a right to challenge the legality of their detention. <br />
<br><br />
<br><br />
<br />
<li>'''Capital Punishment:''' <br />
<br />
The death penalty was abolished in Liechtenstein in 1989.<br />
<br />
<br><br />
<br><br />
<li>'''Right to Appeal:'''<br />
<br />
Appeals may be made on procedural, factual, and legal grounds.<br />
<br />
<br><br />
<br><br />
<br />
==Rights of Counsel==<br />
<br />
A. Right to Provide Representation: <br />
Legal counsel has a right to provide representation to the accused.<br />
<br />
B. Right of Access to the Client: <br />
Attorneys are guaranteed access to their client.<br />
<br />
C. Right to Information: <br />
Attorneys have a right to access information necessary for their defense. <br />
<br />
D. Right to Confidential Communication with the Client:<br />
Information between attorney and client is considered privileged and is protected under civil and criminal codes. <br />
<br />
<br><br />
<br />
==Means of Protecting and Enforcing Rights==<br />
<br />
'''Exclusionary Rule:'''<br />
<br />
Exclusion of unlawfully obtained evidence.<br />
<br />
'''Nullity of Procedure:'''<br />
<br />
Procedural errors can lead to the nullification of proceedings. <br />
<br />
'''Motions:'''<br />
<br />
Defendants can file motions to challenge aspects of the prosecution’s case.<br />
<br />
'''Contempt proceedings:'''<br />
Individuals may be held in contempt for actions that disrespect the court or obstruct justice. <br />
<br />
'''Civil Actions:'''<br />
Civil law claims of the injured party may be addressed during criminal proceedings unless further elaboration requires referral to civil litigation<br />
<br />
<br><br />
==Pre-Trial Procedure==<br />
<br />
'''Police procedures'''<br />
<br />
<li>''Complaint:'' <br />
<br />
The Office of the Public Prosecutor us ex officio responsible for investigating and prosecuting all criminal offences of which it gains knowledge<br />
<br />
<li>''Arrest, Search and Seizure Laws:''<br />
<ul><br />
a. Stop and Frisks: Police must inform the suspect of the charges they face and their rights upon arrest; communication is immediate. <br />
<br><br />
b. Arrests: Arrest warrants are issued by the national court. <br />
<br><br />
c. Pre-trial detention: Initially 14 days and may be extended upon review. <br />
<br> <br />
d. Searches: Conducted based on a judicial warrant, which must be served upon the person concerned either immediately or within the 24 hours. <br />
<br><br />
e. Enforcing the Rules (Exclusionary Rule, Nullity and other procedures to protect against illegal police procedures): Evidence obtained unlawfully must be excluded.</ul><br />
<br />
<li>''Interrogation:''<br />
<ul><br />
a. Before Formal Charge in Court: Suspects have the right to remain silent and the right to legal counsel at all stages. <br />
<br><br />
b. After Defendant is Formally Charged: The same rights apply, ensuring protection against self-incrimination. <br />
<br><br />
c. Enforcement: Procedures are in place to protect against illegal interrogation </ul><br />
<br><br />
<br><br />
<br />
==Court Procedures==<br />
<br />
<li>'''Pre-Trial:'''<br />
<ul>A. Initial Court Appearance: Police must bring the arrested person in front of the magistrate within 48 hours for formal charges or release to be determined. <br />
<br><br />
B. Charging Instrument: The prosecutor must submit a formal bill of indictment to the criminal tribunal. <br />
<br><br />
C. Preliminary Hearing: There is no formal pre-trial that occurs other than what has been mentioned above in terms of arrest and detention. <br />
<br> <br />
D. Pre-Trial Motions: Defendants can file motions to challenge aspects of the prosecution’s case.<br />
<br><br />
E. Discovery: Investigating judge shall, at the accused request, permit him to inspect and make copies of the files of the criminal proceedings.<br />
<br>There is no formal pretrial discovery or hearing process beyond arrest-related procedures. Police must inform suspects immediately of the charges and their rights upon arrest, including the right to counsel and the right to remain silent. Use of force is regulated by law, with firearms being permitted under strict conditions. Pre-trial detention is limited, initially 14 days, after review, it may be extended to one month, after more review it may be additionally extended to two months. </ul><br />
<br />
<br><br />
<li>'''Trial:'''<br />
<ul><br />
A. Nature of the Trial: Generally public, except for some exceptions, including public morality, safety, or to protect sensitive personal or business information. <br />
<br><br />
B. Defendant: Right to be present and participate in their defense. <br><br />
C. Lawyers: Granted full access to client and relevant case files. <br><br />
D. Expert Witnesses: Liechtenstein permits expert evidence where specialized knowledge is needed. <br><br />
E. Judges: Appointed to their position and serve as sole factfinder in most cases since there is no jury. <br><br />
F. Victims: Referred to as “injured parties,” can participate in criminal proceedings to an extent. <br><br />
<ul>a. Right to be Heard: Can provide testimony, file civil claims for damages within the criminal trial, and request to be informed of developments in the case.<br><br />
b. Right to Protection: Protective measures are offered to vulnerable victims, including minors and those impacted by sexual violence or domestic abuse.<br><br />
c. Legal Representation: Allowed counsel when they are seeking damages. <br><br />
d. Confidentiality: Proceedings may be closed to the public to ensure victim privacy.<br><br />
e. Restitution and Compensation: Have the choice to be compensated through the criminal court as a joined civil claim or file a separate civil suit.</ul></ul><br />
<br />
<br><br />
<li>'''Sentencing:'''<br />
<br />
Sentencing is determined by the judge following conviction. There is no jury, so the Penal Code is used to determine applicable penalties; including: fines, suspended sentences, community service, and imprisonment. Factors that are considered are the gravity of the offense, the circumstances of the defendant, and any mitigating or aggravating elements. <br />
<br><br />
<br><br />
<br />
<li>'''Appeals:'''<br />
<br><br />
A. Right to Counsel: Retain access to counsel during the appellate process. <br />
<ul>a. Grounds for Appeal: Procedural errors, incorrect application of substantive law, errors of fact, contradictions between findings and court files, nullity, ineffective assistance of counsel.<br><br />
b. Collateral Remedies (Habeas): Judicial review is a pillar of the law in Liechtenstein.</ul><br />
Appeals can be filed on procedural, factual, and legal grounds, with the possibility of escalation to the Supreme Court<br />
<br />
<br><br />
<br />
==Rights in Prison==<br />
<br />
<br />
<li>'''Right to Humane Conditions of Confinement:'''<br />
<br />
a. Facilities must uphold basic living standards.<br />
b. Overcrowding is not a concern due to the country’s small population. <br />
c. Liechtenstein operates a single short-term detention facility with a 20-bed capacity.<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Immigrant’s Rights in Detention:''' Immigrants are entitled to the same protections under Liechtenstein’s law and the ECHR.<br />
<br><br />
<br><br />
<br />
<li>'''Right to Medical Care in Prison:'''<br />
<br />
Inmates are guaranteed access to physical health services under Article 125(5) of the Enforcement of Sentences Act.<br />
<br />
<br> <br />
<br><br />
<li>'''Right to Mental Health Care:'''<br />
<br />
Mental health services are required by law, although the scale of provision may be limited due to facility size.<br />
<br />
<br><br />
<br><br />
<li>'''Restriction of rights:'''<br />
<br />
Restrictions of prisoners’ rights must be proportionate, lawful, and serve a legitimate correctional purpose<br />
<br><br />
<br><br />
<li>'''Rights of Special Populations:'''<br />
<br />
<ul><li>''Women'': <br />
<br />
Have a separate section in the prison, comprising of just four beds<br />
<li>''Juveniles:'' <br />
<br />
Typically detained in Austria; creating issues related to distance from family and social support.</ul><br />
<br />
<br />
==Resources==<br />
<br />
- “Liechtenstein.” Encyclopaedia Britannica, https://www.britannica.com/place/Liechtenstein<br />
<br />
- Legalink. “Liechtenstein Anticorruption Laws.” 2013, https://legalink.net/.../Liechtenstein_Anticorruption_Laws_LEGALINK2013 <br />
<br />
- U.S. Department of State. “Liechtenstein Human Rights Report.” https://www.state.gov/.../Liechtenstein-1.pdf<br />
<br />
- Pro Bono Institute. “Pro Bono in Liechtenstein.” https://www.probonoinst.org/.../liechtenstein.pdf<br />
<br />
- Financial Market Authority Liechtenstein. “Attorneys at Law.” https://finance.li/en/attorneys-at-law/<br />
<br />
- “Liechtenstein 2011 Constitution.” Constitution Project, https://www.constituteproject.org/.../Liechtenstein_2011<br />
<br />
- Liechtenstein Government. “CAT Submission Document.” https://www.llv.li/.../pdf-llv-aaa-folter-cat3_engl.pdf<br />
<br />
- Policing Law: Liechtenstein. https://www.policinglaw.info/country/liechtenstein<br />
<br />
- UNHCR Refworld. “Liechtenstein 2017 Human Rights Report.” https://www.refworld.org/reference/annualreport/usdos/2017/en/116375<br />
<br />
- Enforcement of Sentences Act, Art. 125(5).<br />
<br />
- U.S. Department of State. “Liechtenstein 2017 Human Rights Report.” https://www.state.gov/reports/.../liechtenstein/<br />
<br />
- Liechtenstein Criminal Procedure Code 1987 (as amended 2017). https://legislationline.org/sites/default/files/documents/10/Liechtenstein_Criminal_Procedure_Code_1987_am2017_en.pdf<br />
<br />
- Global Legal Insights. https://www.globallegalinsights.com/.../liechtenstein<br />
<br />
- Chambers Practice Guides. https://practiceguides.chambers.com/.../litigation-2025<br />
<br />
- https://legislationline.org/sites/default/files/documents/10/Liechtenstein_Criminal_Procedure_Code_1987_am2017_en.pdf<br />
<br />
- U.S. Department of State, Human Rights Practices Report 2022. https://www.state.gov/.../liechtenstein/</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Criminal_Justice_Systems_Around_the_World&diff=381651Criminal Justice Systems Around the World2025-06-17T07:48:45Z<p>IBJadmin: </p>
<hr />
<div>Criminal justice systems can be loosely classified as either common, civil, Islamic or socialist law in nature. However, today many jurisdictions have adopted hybrid models that combine elements of various legal systems. Many of these systems share a common set of [[Core Values | core values]]. In addition, most criminal justice systems have adopted a [[Legality Principle | legality principle]]. Almost every criminal justice system is made of of similar [[Actors in the Criminal Justice System | actors]].<br />
<br />
==Country Pages==<br />
<div style="float: left; width: 33%"><br />
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<br />
</div><div style="float: left; width: 33%"><br />
<br />
*[[Pakistan]]<br />
*Palau<br />
*Palestine<br />
*[[Panama]]<br />
*[[Papua New Guinea]]<br />
*[[Paraguay]]<br />
*[[Peru]]<br />
*[[Philippines]]<br />
*[[Poland]]<br />
*[[Portugal]]<br />
*[[Qatar]]<br />
*[[Romania]]<br />
*[[Russia]]<br />
*[[Rwanda]]<br />
*Saint Kitts and Nevis<br />
*[[Saint Lucia]]<br />
*Saint Vincent and the Grenadines<br />
*Samoa<br />
*San Marino<br />
*[[São Tomé and Príncipe]]<br />
*[[Saudi Arabia]]<br />
*[[Senegal]]<br />
*[[Serbia]]<br />
*[[Seychelles]]<br />
*[[Sierra Leone]]<br />
*[[Singapore]]<br />
*[[Slovakia]]<br />
*Slovenia<br />
*[[Solomon Islands]]<br />
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*[[South Sudan]]<br />
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*Suriname<br />
*[[Swaziland]]<br />
*[[Sweden]]<br />
*[[Switzerland]]<br />
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*[[Tajikistan]]<br />
*[[Tanzania]] <br />
**[[Zanzibar]]<br />
*[[Thailand]]<br />
*[[Togo]]<br />
*[[Tonga]]<br />
*[[Trinidad and Tobago]]<br />
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*[[Turkmenistan]]<br />
*[[Tuvalu]] <br />
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*United Kingdom<br />
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*[[Uruguay]] <br />
*[[Uzbekistan]]<br />
*Vanuatu<br />
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*[[Zimbabwe]] <br />
<br />
<br />
<br />
</div><br />
<br />
{{Languages|Criminal Justice Systems Around the World}}<br />
<br />
==We need your help==<br />
Can you assist the creation of a country-page? Email elearning@ibj.org.<br />
<br />
----<br />
<br />
See [[Legal Aid Systems and Supporting NGOs around the world]]</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Paraguay&diff=381650Paraguay2025-05-12T14:41:38Z<p>IBJadmin: </p>
<hr />
<div><br />
{{Languages|English}}<br />
<br />
<div class="box" style="padding: 40px; font-size: 1.5em; font-family: Arial, sans-serif; line-height: 1.5; border: 3px solid yellow; background-color: #FFFF00; text-align: center; margin: 30px;"><br />
⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>.<br />
</div><br />
<br />
<br />
{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;"> Legal Resources for Paraguay </h2><br />
* Constitution of Paraguay <ref>- https://www.constituteproject.org/constitution/Paraguay_2011 <br />
</ref><br />
<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources </h2> <br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
<br />
==Background==<br />
<br />
The Republic of Paraguay is a landlocked country located in South America, which declared its independence from Spain on the night of May 14th, 1811. Following a series of authoritarian governments culminating in the 35-year regime of Alfredo Stroessner and his fall in 1989, Paraguay embarked on an era of democratisation, solidified by the adoption of its 1992 Constitution.<br />
<br />
Contemporary Paraguay has a thriving agricultural economy, and is amongst the largest global exporters of hydropower. The official languages are Spanish and the indigenous language Guaraní, which is widely spoken and remains a symbol of the nation’s cultural identity.<br />
<br />
<br><br />
<br />
==The Legal system== <br />
<br />
Paraguay has a civil law system due to its colonial history. Therefore, the legal system relies significantly on codified laws as opposed to judicial precedents, distinguishing it from common law systems, such as those of the United States or the United Kingdom.<br />
<br />
<br />
==Legal Aid==<br />
<br />
* <i> State Sponsored legal aid:</i><br />
Article 17(6) of the Constitution establishes that the State will provide a public defender where an individual does not have the economic means to pay for legal representation. Article 9, clause 3 of The Organic Law of the Ministry of Public Defence (Ley Nº 4.423/11, Orgánica del Ministerio de la Defensa Pública) ensures the observation of this right in practice<br />
<br />
* <i>Number of lawyers (criminal/civil) if known: </i><br />
Paraguay was the country with the highest number of lawyers per capita in Latin America in 2019, with an estimated 722 lawyers per 100,000 inhabitants. This ratio suggests there were approximately 50,540 lawyers at the time. Recent data suggests Paraguay has now been surpassed by Brazil and the Dominican Republic in terms of lawyers per capita, but its legal sector remains prominent nonetheless. <br />
<br />
<br><br />
<br />
==Source of Defendants Rights==<br />
<br />
<li>'''National Sources of Defendant’s rights:'''<br />
<br> The Constitution of the Republic of Paraguay (1992) <br />
<br> The Code of Criminal Procedure (Law No. 1286/98) <br />
<br> The Criminal Code (Law No. 1160/97) <br />
<br> Organic Law of the Ministry of Public Defence (Law No. 4423/11) <br />
<br> Penitentiary System Law (Law No. 210/70) <br />
<br> The Law for Free Access of Citizens to Public information and Government <br />
Transparency (Law No. 5282/14)<br />
<br />
<br />
<br />
<br><br />
<br><br />
<li>'''International Sources of defendant’s rights:'''<br />
<br />
The primary sources of protection for the rights of Paraguayan citizens in<br />
international law are the American Convention on Human Rights (ACHR),<br />
and the International Covenant on Civil and Political Rights (ICCPR).<br />
<br />
<br><br />
<br><br />
==Rights of the Accused==<br />
<br />
<li> '''Right Against Unlawful Arrests, Searches and Seizures:'''<br />
* National law: <br />
Article 12 of the Paraguayan Constitution provides that no individual may be arrested without a written order issued by a competent authority, unless they are caught in flagrante delicto committing a crime which merits a penalty involving the deprivation of physical liberty. <br />
<br />
With respect to searches, Article 179 of the Criminal Procedure Code Law (Law No. 1286/98) provides that police should inform the person being searched of the suspected grounds and the object being sought, inviting them to produce the object voluntarily. Furthermore, it is required that the search be conducted in the presence of two competent witnesses, preferably neighbours, with no connection to the police. Article 180 of the Criminal Procedure Code Law (Law No. 1286/98) further provides that searches are to be carried out separately by a person of the same sex, respecting individuals’ dignity and modesty.<br />
<br />
Regarding the seizure of property, Articles 196 and 197 of the Criminal Procedure Code Law outline that seized property is to be appropriately stored and returned once no longer required.<br />
<br />
* International law:<br />
The American Convention on Human Rights (ACHR), to which Paraguay is signatory, protects the right of citizens to personal liberty in Article 7, particularly prohibiting arbitrary arrest or imprisonment in Article 7 (3). This is reinforced by the International Covenant on Civil and Political Rights (ICCPR) at Article 9.<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Unlawful Detention:'''<br />
* National law<br />
Article 12 of the Paraguayan Constitution provides the same conditions for unlawful detention as arrest. It further establishes that all detained persons have an immediate right to be informed of the motive of their arrest, for the detention to be communicated to their family or the people they indicate, and to remain in free communication with others unless a competent judicial mandate rules otherwise. They additionally have the right to be provided with an interpreter and be brought before the competent judicial magistrate within 24 hours.<br />
<br />
* International law<br />
Article 7 of the ACHR establishes the conditions for lawful detention, including the right to be brought promptly before a judge and undergo proceedings before a court, which are further reflected in Article 9 of the ICCPR.<br />
<br />
<br><br />
<br><br />
<li>'''Right Not to be Tortured or Ill-Treated:'''<br />
* National law<br />
Article 5 of the Constitution explicitly prohibits torture and all other cruel, inhuman or degrading treatment. <br />
<br />
* International law<br />
Paraguay is a signatory to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). Furthermore, Article 5 (2) of the ACHR mirrors the protection provided by national law, and is itself reflected in Article 7 of the ICCPR. <br />
<br><br />
<br><br />
<br />
<li>'''Right to Medical Care:'''<br />
* National law<br />
Resolution No 1344/2015, Article 1 (e), sets access to a medical professional when needed, under strict police supervision, as a minimum condition for police detention. <br />
<br />
* International law<br />
This right is implicitly protected through the right to physical, mental and moral integrity in Article 5 (1) of the ACHR, and likewise in Article 10 of the ICCPR. <br />
<br><br />
<br><br />
<br />
<br />
<li>'''Right to be Informed of Charges:'''<br />
* National law <br />
Article 303 of the Criminal Procedure Code Law (Law No. 1286/98) requires criminal judges to notify the accused of the formal charges. As provided by Article 302, there must be a succinct description of the act(s) being charged in the official charging document (acta de imputación).<br />
<br />
* International law<br />
Article 7(4) of the ACHR requires for detainees to be both informed of the reasons for their detention and promptly notified of the charge(s) against them, as reflected in Article 9 (2) of the ICCPR.<br />
<br />
<br><br />
<br><br />
<li>'''Right to Presumption of Innocence:''' <br />
* National law<br />
Article 17 (1) of the Paraguayan Constitution ensures that individuals are presumed innocent. The Criminal Procedure Code Law (Law No.1286/98) translates this right into procedural protections, with Article 4 providing that the accused will be considered innocent during the process of justice until a final judgment declares their guilt. <br />
<br />
* International law<br />
This right is bolstered in international law through Article 8 (2) of the ACHR, and Article 14 (2) of the ICCPR. <br />
<br><br />
<br><br />
<br />
<br />
<li>'''Right Against Self-Incrimination:'''<br />
* National law<br />
Article 18 of the Paraguayan Constitution establishes that nobody can be compelled to testify against themselves. <br />
<br />
* International law<br />
Article 8(2)(g) of the ACHR ensures that the accused may not be compelled to be a witness against himself, and this is mirrored by Article 14(3)(g) of the ICCPR. <br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Counsel:'''<br />
* National law<br />
Article 17(5) of the Paraguayan Constitution protects the right of individuals to be assisted by defenders of their choice, or under Article 17(6), to be provided with a public defender by the State if they do not have the economic means to provide their own counsel. Furthermore, Title IV, Chapter III of the Criminal Procedure Code Law (Law No. 1286/98) outlines the framework for enforcing this right in practice.<br />
<br />
* International law<br />
This is mirrored by Articles 8(2)(d) and (e) of the ACHR, which establish the right to be assisted by legal counsel of one’s own choosing, or provided by the State, and this if further reflected in Articles 14(3)(b)and (d) ICCPR. <br />
<br />
<br />
<br><br />
<br><br />
<li>'''Right to a Present a Defense:'''<br />
* National law<br />
The ‘inviolable’ right to defence in court is enshrined in Article 16 of the Paraguayan Constitution, and is again bolstered by Title IV, Chapter III of the Criminal Procedure Code Law (Law No.1286/98), and Article 9, ensuring the accused is guaranteed a fair opportunity to present his case.<br />
<br />
* International law<br />
Article 8(2)(c) of the ACHR underlines the need for the accused to be allowed the adequate time and means to present his defence, whilst Article 8(2)(f) ensures the right of the defence to engage effectively in the process, such as by examining witnesses. This is reinforced by Articles 14(3)(b) and (e) ICCPR.<br />
<br />
<br />
<br><br />
<br><br />
<li>'''Right to Due Process:'''<br />
* National law<br />
The right to due process is primarily embedded in Article 17 of the Paraguayan Constitution which outlines robust procedural safeguards to ensure fairness and transparency. The Criminal Procedure Code Law (Law No.1286/98) guarantees that this right is observed throughout the entire proceedings. <br />
<br />
* International law<br />
Article 8(1) of the ACHR clearly establishes the right for a hearing to be carried out with the ‘due guarantees’, and Article 14 ICCPR reflects the core guarantees underlying the right to due process.<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Equal Protection of the Laws:'''<br />
* National law<br />
This right is enshrined in Chapter III of the Paraguayan Constitution, on equality, with Article 47 (2) in particular underlining that the State guarantees to all inhabitants of the Republic ‘equality before the laws’. <br />
<br />
* International law<br />
Likewise, Article 24 of the ACHR holds that all persons are equal before the law, and Article 26 ICCPR provides the same guarantee, whilst underlining the totality of the ban on discrimination. <br />
<br />
<br />
<br><br />
<br><br />
<li>'''Right to Bail:'''<br />
* National law<br />
An explicit right to bail is notably absent in the Paraguayan Constitution, although Article 12(5) holds that the accused must be brought before a competent judicial magistrate within 24 hours. Again, the Criminal Procedure Code Law (Law No.1286/98) does not directly provide a right to be released ‘bajo fianza’ (on bail); however in Articles 257-9, a system of ‘cauciones’ (cautions) is outlined, which is analogous to the use of bail in common law systems, whereby personal or financial guarantees can be used to avoid preventive detention. <br />
<br />
* International law<br />
Similarly, there is no explicit right to bail in the ACHR, but Article 7(5) establishes that detainees have a right to trial within a reasonable period of time, or to be released without prejudice to the continuation of the proceedings, potentially subject to ‘guarantees’ assuring his appearance for trial. This is mirrored by Article 9(3) of the ICCPR.<br />
<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Ex Post Facto Prosecution:'''<br />
* National law<br />
Article 14 of the Paraguayan Constitution prohibits law from having a retroactive effect unless it is more favourable to the accused. This is reinforced in practice by the Criminal Procedure Code Law (Law No.1286/98), Article 1 of which clearly sets out that no one may be convicted except based on a law enacted before the act subject to the proceeding, and this is furthered by Article 11, which prevents procedural rules from being applied retroactively unless doing so is more favourable to the accused. <br />
<br />
* International law<br />
Article 9 of the ACHR explicitly protects freedom from ex post facto laws, and goes even further to require that if subsequent law provides for the imposition of a lighter punishment, the accused must benefit. This is mirrored by Article 15 ICCPR, indicating a thorough defence overall of this right in international law. <br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Double Jeopardy:'''<br />
<br />
* National law<br />
Article 17 (4) of the Paraguayan Constitution holds that nobody may be prosecuted or convicted twice for the same act, as is directly reflected in Article 8 of the Criminal Procedure Code Law (Law No.1286/98), which further provides that closed proceedings may not be reopened, except to review sentences in favour of the convicted person. <br />
<br />
* International law<br />
Article 8(4) of the ACHR underlines that a person already acquitted by a non appealable judgment is not to face trial again for the same cause, consistently with Article 14(7) ICCPR.<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to a Fair Trial:'''<br />
<br />
<ul><li>Generally: <br />
The right to a fair trial in the Paraguayan Constitution is protected through Article 16, which emphasises the inviolability of the rights of the defence during trial, and the procedural guarantees framed in Article 17. The Criminal Procedure Code Law (Law No.1286/98) synthesises these guarantees into a coherent framework for protecting the right to a fair trial in Paraguay. <br />
<br />
In international law, Article 8 of the ACHR explicitly covers the right to a fair trial, and lists the requirements demanded by this right, which are reflected in Article 14 of the ICCPR.<br />
<br />
<br />
<li>Right to a Trial by Jury:<br />
No jury mechanism exists in Paraguay; criminal trials are conducted by <br />
sentencing tribunals composed of professional judges.<br />
<br />
<li>Right to a Speedy Trial:<br />
<br />
Article 12 of the Paraguayan Constitution emphasises that detainees must be brought before a competent judicial authority within 24 hours; however, the Criminal Procedure Code Law (Law No.1286/98) provides for this right more explicitly in Article 136 on maximum duration, which upholds the right to a judicial resolution within a reasonable time frame, and sets a maximum duration of three years, with an extension of 6 months available only for appeals. <br />
<br />
In international law, this is reinforced by the entitlement to trial within a reasonable time in Article 7(5) and Article 8(1) ACHR, as well as Article 9(3) and Article 14(3)(c) of the ICCPR. <br />
<br />
<li>Right to an Impartial Judge:<br />
The right to an impartial judge is explicitly protected by Article 16 of the Paraguayan Constitution, and reinforced in international law by Article 8(1) ACHR and Article 14(1) ICCPR.<br />
</ul><br />
<br />
<br><br />
<li>'''Right to Language Interpretation:'''<br />
* National law<br />
Article 12 of the Paraguayan Constitution ensures the right to be provided with a language interpreter if necessary, and this is enforced in practice by Article 7 of the Criminal Procedure Code Law (Law No.1286/98). <br />
<br />
* International law<br />
Article 8(2)(a) of the ACHR reasserts this right and highlights the requirement for an interpreter to be provided ‘without charge’, as is echoed by Article 14(3)(f) ICCPR.<br />
<br><br />
<br><br />
'''Right to Habeas Corpus'''<br />
<br />
* National law<br />
Article 133 of the Paraguayan Constitution provides detailed preventive, reparative and and generic protection of the right to habeas corpus. This right is extensively protected in practice through Law No. 1500, which regulates the constitutional guarantee to habeas corpus. <br />
<br />
* International law<br />
The ACHR and ICCPR do not explicitly address habeas corpus but require mechanisms against unlawful detention, in Articles 7 and 9 respectively. <br />
<br><br />
<br><br />
<li>'''Capital Punishment:''' <br />
* National law<br />
Article 4 of the Paraguayan Constitution on the right to life unequivocally provides that ‘the death penalty is hereby abolished’.<br />
* International law<br />
This protection is supplemented by the restrictions on the death penalty in Articles 4(2)-(6) of the ACHR and Article 6(2)-(5) of the ICCPR<br />
<br><br />
<br><br />
<li>'''Right to Appeal:'''<br />
* National law<br />
The Paraguayan Constitution does not provide an automatic right to appeal, although it explicitly recognises the possibility of an appeal system, such as in Article 17, which emphasises that cases may not be reopened unless on appeal. However, Article 461 of the Criminal Procedure Code Law (Law No.1286/98) provides which rulings may be appealed, particularly highlighting that any ruling which cause irreparable harm are appealable, except when explicitly declared non-appealable elsewhere.<br />
<br />
* International law<br />
Article 8(2)(h) of the ACHR compensates for this lack of direct protection in national law, by explicitly upholding a right to appeal to a higher court, as is equally reflected in Article 14(5) ICCPR.<br />
<br><br />
<br><br />
<br />
==Rights of Counsel==<br />
<br />
<b>Right to Provide Representation:</b><br />
* National law<br />
In its discussion of the rights of the accused in Articles 16 and 17, the Paraguayan Constitution indirectly ensures some safeguards for counsel to provide representation without interference. Likewise, in the Criminal Procedure Code Law (Law No.1286/98), the right of the counsel to provide representation is framed in terms of the rights of the accused to legal representation. <br />
<br />
* International law<br />
Again, in Article 8(2)(d) of the ACHR, the right of the counsel to provide representation is protected through the right of the accused to choose their counsel and communicate freely with them, as reinforced by Article 14(3)(b) ICCPR.<br />
<br />
<br />
<b>Right of Access to the Client:</b><br />
* National law<br />
There is no explicit right of access to the client in the Paraguayan Constitution; however, the Criminal Procedure Code Law (Law No.1286/98) requires in Article 101 that defense attorneys be immediately recognised, without any unnecessary formalities, thereby ensuring their unhindered access to the client.<br />
<br />
* International law<br />
Again, this right is implicitly protected through the rights of the accused in Article 8(2)(d) of the ACHR and Article 14(3)(b) of the ICCPR.<br />
<br />
<br><br />
<br />
'''Right to Information:'''<br />
<br />
* National law<br />
Beyond the implicit protection of Articles 16 and 17 of the Paraguayan Constitution, the Criminal Procedure Code Law (Law No.1286/98) protects this right through Article 9, which promises equality of procedural opportunities, and more specifically elsewhere, such as in Article 352 which provides that for the preliminary hearing, the evidence gathered during the investigation must be made available to both parties.<br />
<br />
* International law<br />
The right of the defence in Article 8(2)(f) ACHR and Article 14(3)(e) ICCPR to examine witnesses aids the counsel in enforcing their right to obtain the information needed to defend their client.<br />
<br />
<br><br />
<br />
<b>Right to Confidential Communication with the Client:</b><br />
* National law<br />
There is a lack of an explicit basis for the right to confidential communication with the client in the Paraguayan Constitution. For Public Defenders at least, the Organic Law of the Ministry of Public Defence (Law No. 4423/11) compensates in practice, for example through Article 47, which requires an office to be designated for private interviews between detainees and the Public Defender.<br />
<br />
* International law<br />
Again, this right is furthermore loosely protected through implication in Article 8(2)(d) ACHR and Article 14(3)(b) ICCPR<br />
<br />
<br />
<br><br />
<br />
==Means of Protecting or Enforcing Rights==<br />
<br />
a. Exclusionary Rule:<br />
Article 174 of the Criminal Procedure Code Law (Law No.1286/98) excludes evidence obtained through acts which violate procedural guarantees enshrined in the Constitution, and in applicable international law. <br />
<br />
b. Nullity of Procedure:<br />
Article 165 of the Criminal Procedure Code Law (Law No.1286/98) provides for the nullity of acts which fail to observe the requisite forms and conditions enshrined in the Constitution, international law and the Code, with Articles 167-171 providing the mechanism and effects of declaring the nullity of acts or entire procedures which irreparably violate a right. <br />
<br />
c. Motions:<br />
In addition to the motions for appeal, the exclusion of evidence, nullity and habeas corpus, others include the motion for recusal, to disqualify a judge or judicial officer for impartiality (Article 50, Criminal Procedure Code Law No.1286/98), the motion for amparo to protect constitutional rights against acts or omissions which violate or threaten fundamental rights (Article 134, Paraguayan Constitution), and the motion for conditional suspension of proceedings (Article 308, Criminal Procedure Code Law No.1286/98).<br />
<br />
d. Contempt:<br />
Law No.4711, which sanctions the contempt of a judicial order, was enacted by the Executive branch and provides as punishment prison sentences ranging from six months to two years, or five in exceptional cases, and otherwise a fine. <br />
<br />
e. Civil Actions:<br />
Title II Chapter II of the Criminal Procedure Code Law No.1286/98 provides the basis of a civil action for the reparation or compensation of damages caused by a criminal offence.<br />
<br />
<br><br />
==Pre-Trial Procedure==<br />
<br />
'''Police procedures'''<br />
<br />
* <li>''Complaint/information:''<br />
<br />
Title I, Chapter II, sections I and II of the Criminal Procedure Code Law (Law No.1286/98) provide for denuncia and querella. Denuncia is a formal notification to public authorities about the occurrence of a punishable act, whereas querella is a formal private prosecution initiated by the victim which requires a higher degree of formality and involvement from the claimant. <br />
<br><br />
* <li>''Arrest, Search and Seizure Laws:''<br />
* Stops and Frisks:<br />
<ul>Articles 179-180 of the Criminal Procedure Code Law (Law No.1286/98) provide on the rules for police inspection of a person, including the need for sufficient motives to believe they are concealing objects related to a punishable act in their clothing, belongings, or externally attached to their body. The suspect must be invited to willingly present the object, and the inspection is to be carried out in the presence of two competent witnesses, preferably neighbors of the area, who must not have any connection with the police. Furthermore, the inspection is to be conducted separately, by a person of the same sex. A record must be drawn up and should be signed by the person searched. </ul><br />
<br />
<ul><li>Arrest:</li><br />
Article 239 of the Criminal Procedure Code Law (Law No.1286/98) allows the apprehension of individuals caught in flagrante delicto, or who have escaped from a penal establishment, or otherwise when there are sufficient indications of their involvement in a punishable act. <br />
<br />
<li> Pre-trial detention:</li><br />
Article 240 of the Criminal Procedure Code Law (Law No.1286/98) provides for detention in the following cases: 1) where there is a founded probability to reasonably assert that they are the author or participant in a punishable act, and they may hide, flee, or leave the location 2) When, at the commencement of the investigation, it is impossible to identify the accused and witnesses, and it is necessary to act urgently to avoid harming the investigation, preventing those present from leaving the location, communicating with each other, or altering the condition of the objects and the scene, and 3) When, for the investigation of a punishable act, the attendance of any person is necessary to give testimony, and they refuse to do so.<br />
<br />
<li>Searches</li><br />
Articles 187-192 of the Criminal Procedure Code Law (Law No. 1286/98) provide various restrictions on searches conducted by police, including the need for a warrant and the time of day in which searches may be conducted. <br></ul><br />
<br />
<br />
* ''Enforcing the Rules (Exclusionary Rule, Nullity and other procedures to protect against illegal police procedures)'': Article 174 of the Criminal Procedure Code Law (Law No.1286/98) excludes evidence obtained through acts which violate procedural guarantees enshrined in the Constitution, and in applicable international law, thereby preventing illegal police procedure.<br />
<ul>This is furthered by Article 165 of the Criminal Procedure Code Law (Law No.1286/98), which provides for the nullity of acts which fail to observe the requisite forms and conditions enshrined in the Constitution, international law and the Code, with Articles 167-171 providing the mechanism and effects of declaring the nullity of acts or entire procedures which irreparably violate a right. </ul><br />
<br />
<br><br />
* ''Lineups and other identification procedures'': <br />
* Lineups: Articles 229 and 230 of the Criminal Procedure Code Law (Law No.1286/98) establish the protocol for police lineups. It is established that a record of the procedure will be created, noting all relevant circumstances and personal details of those participating in the lineup. Precautions will be taken to prevent the accused from altering their appearance, and identification may proceed even without the accused's consent. If the accused cannot be physically present, photographs or other records may be used, following the same rules.<br />
<br />
* Other identification procedures: Article 232 of the Criminal Procedure Code Law (Law No.1286/98) upholds analogous standards for the identification of objects.<br />
<br />
<br><br />
<br />
* ''Interrogation''<br />
<ul> -Before formal charge in court<br />
Article 90 of the Criminal Procedure Code Law (Law No.1286/98) explicitly prohibits the police from conducting extensive formal inquiries. <br />
<br><br />
- After Defendant is formally charged<br />
Article 88 of the Criminal Procedure Code Law (Law No.1286/98) prevents certain methods of interrogation even after the defendant is charged, such as torture and intimidation.<br />
<br><br />
- Enforcing the Rules (procedures to protect against illegal interrogation)<br />
Under Articles 165-174 of the Criminal Procedure Code Law (Law No.1286/98), statements provided through illegal interrogation would be null.</ul><br />
<br />
<br><br />
==Court Procedures==<br />
<br />
<li>'''Pre-Trial:'''<br />
<br><br />
<ul>''i. Initial Court Appearance:<br />
''<br />
Articles 301-306 of the Criminal Procedure Code Law (Law No.1286/98) describe the procedure and requirements for initiating a formal accusation and soliciting the initial court appearance.<br><br />
''ii. Charging Instrument:''<br />
The nature of the charging instrument is detailed in Articles 347-349 of the Criminal Procedure Code Law (Law No.1286/98), including the requirement for: a precise and detailed account of the punishable act attributed to the accused; the basis of the accusation, with a statement of the evidentiary elements that support it; a precise statement of the applicable legal provisions and the presentation of evidence to be introduced during the trial.<br><br />
<br />
''iii. Preliminary Hearing:''<br />
Once the accusation has been presented, Article 352 of the Criminal Procedure Code Law (Law no.1286/98) on Preliminary Hearings provides for the judge to summon parties to an oral and public hearing which must be held no less than ten days and no more than twenty days later. <br><br />
<br />
''iv. Pre-Trial Motions:'''<br />
Article 327 of the Criminal Procedure Code Law (Law no.1286/98) establishes that the defence or other parties may raise motions that challenge the progress of the prosecution. The judge is required to decide these motions before trial or at least before the final resolution of the main case. <br><br />
<br />
''v. Discovery:''<br />
There is no ‘discovery phase’ directly analogous to common law systems, but the Criminal Procedure Code Law (Law no.1286/98) does thoroughly ensure access to evidence, through Article 282, which underlines that the defense can request or verify investigative acts under judicial control, as well as Article 352, which upholds that once the accusation is filed, the parties have five days to examine the file and evidence before the preliminary hearing.</ul><br />
<br />
<li>'''Trial:'''<br />
<ul> <li>i. Nature of the Trial:<br />
The Criminal Procedure Code Law (Law no.1286/98) outlines several practices and principles underlying trial in Paraguay. Article 366 requires that the same judges must be present continuously, whilst article 370 underlines the oral nature of the hearing. Furthermore, under Article 368, hearings will be public unless there are special reasons such as the privacy of a minor. <br />
<br />
<li>ii. Defendant:<br />
Article 6 of the Criminal Procedure Code Law (Law no.1286/98) emphasises the inviolability of the defence, whilst Article 75 details the rights of the defendant, including the right to refrain from making a statement, and for their defense attorney to be present at the time of their statement if they choose to declare, as well as during other proceedings requiring their presence. In order to respect the Defendant’s right to a fair trial, it is prohibited to impair the judge or the Public Prosecutor's Office in their duties. <br />
<br />
<li>iii. Lawyers:<br />
Title V of the Criminal Procedure Code Law (Law no.1286/98) lays out the freedoms and standards in relation to lawyers at trial. Article 106 holds that a lawyer must not abandon his client, whilst Article 97 upholds the freedom for the accused to choose his own lawyer.<br />
<br />
<li>iv. Expert Witnesses:<br />
Articles 214-255 of the Criminal Procedure Code Law (Law no.1286/98) outline that judges or parties can request experts in specialised fields, to present written or oral reports. At trial, these experts may be questioned by both sides. <br />
<br />
<li>v. Judges:<br />
Article 3 of the Criminal Procedure Code Law (Law no.1286/98) immediately draws attention to the principle that judges are independent and must act without external influence. Article 41 outlines that the trial typically proceeds before a single judge or a 3-judge panel depending on the severity of the offence. Article 366 emphasises that the same panel must remain throughout the trial. <br />
<br />
<li>vi. Victims:<br />
Victims have the right to actively participate.The victim’s role in public proceedings can be as a querellante adhesivo, meaning the victim collaborates with the exiting case but does not act independently, whilst in private prosecutions, the victim can independently initiate and lead the prosecution without relying on the Public Ministry, thereby acting as a querellante autónomo.<br />
<br />
<br />
</ul><br />
<br />
<li>'''Sentencing:'''<br />
<ul> The Paraguayan Criminal Code (Law Nº 1160/97) outlines sentencing in detail. In Title III it defines the primary forms of criminal punishment, and compensatory avenues. Chapter VI of Title III clearly explains how the sentence is to be determined, and what factors are to be considered, whilst Articles 65 and 67 concern aggravating and mitigating circumstances. </ul><br />
<br />
<li>'''Appeals:'''<br />
<li> <ul>i. Right to Counsel:<br />
Articles 6, 75, and 97–111 of the Criminal Procedure Code Law (Law no.1286/98) continue to apply in appellate stages, the defendant cannot be left unrepresented, due to their right to counsel enshrined in Article 17 of the Paraguayan Constitution<br />
<br><br />
ii. Ineffective Assistance of Counsel:<br />
If the counsel’s ineffectiveness constitutes a serious violation of the inviolable rights of the defence in Article 6 of the Constitution, there would be grounds for nullity under Articles 165 and 166 of the Criminal Procedure Code Law (Law no.1286/98), owing to the due process violation.<br />
<br><br />
iii. Other Grounds for Appeal:<br />
Article 461 of the Criminal Procedure Code Law (Law no.1286/98) outlines the decisions that are appealable, and Article 467 establishes lack of observance or erroneous application of law as the standard for appealing a final sentence. Furthermore, under Articles 477-489, there is extraordinary appeal for certain more serious grounds such as contradictory judgments or major errors.<br />
<br><br />
iv. Collateral Remedies: <br />
Habeas Corpus, discussed above, is provided for by Articles 133-136 of the Paraguayan Constitution, and prevents the unlawful detention of citizens. <br />
<br />
Moreover, the ‘Recurso de Revision’ in Articles 481-489 of the Criminal Procedure Code Law (Law no.1286/98) is an extraordinary remedy to revise a final conviction when fundamental flaws are uncovered. <br />
<br />
</ul><br />
<br><br />
<br />
==Rights in Prison==<br />
<br />
<br />
<li>'''Right to Humane Conditions of Confinement:'''<br />
<br><br />
The right to humane conditions in prison comes under the scope of the protection against degrading treatment in Article 5 of the Paraguayan Constitution. The Penal Code and Penitentiary Law further detail the right to access to basic care including food, healthcare and safety.<br />
<br><br />
<br><br />
'''Immigrant’s Rights in Detention:'''<br />
<br>Article 146 of the Paraguayan Constitution ensures foreign citizens have the same civil rights as those of nationals, outlined above. This is reinforced in international law by Article 24 of the ACHR and Article 26 of the ICCPR.<br />
<br><br />
<br><br />
<li>'''Right to Medical Care in Prison:'''<br />
<br>The right to medical care in prison comes under the scope of Article 5 of the Paraguayan Constitution, which prohibits inhuman and degrading treatment. The Penal Code and Penitentiary System Law (Law No. 210/70) together emphasise the right to health and ensure the provision of services. Paraguay’s Ministry of Public Health upholds initiatives to provide basic access to healthcare for marginalised groups, including prisoners. <br />
<br><br />
<br><br />
'''Right to Mental Health Care:'''<br />
<br>Likewise, the right to mental health care comes under the scope of Article 5 of the Paraguayan Constitution, and the Penal Code and Penitentiary System Law (Law No. 210/70) reinforce the right to the provision of health care. <br />
<br><br />
<br><br />
'''Restriction of rights:'''<br />
Prisoners retain their rights, besides those that are implicated by imprisonment, as emphasised by the Penitentiary Code. For example, Article 11 of the Paraguayan Constitution on the deprivation of liberty is necessarily implicated by imprisonment. <br />
<br />
Despite this Standard, reports have found abusive physical conditions and treatment in Paraguayan prisons which go far beyond what is implicated by imprisonment. <br />
<br />
<br />
<br><br />
<br><br />
<li>'''Rights of Special Populations:'''<br />
<br><br />
1. Women:<br />
Article 48 of the Paraguayan Constitution establishes the equal rights of men and women in, and Law No. 5777/2016 on the protection of women against all forms of violence aims to enforce this right. Despite this framework, in practice, women's rights face infringement, for example rape is a pervasive problem encroaching women’s rights to bodily integrity. In the prison context, the Penitentiary Code lays out standards in relation to female prisoners, including that they must be separated from male prisoners, and also providing for specialised medical care for pregnant and nursing mothers. <br />
<br><br />
<br><br />
2. LGBT Prisoners:<br />
There is a very notable lack of protection for the LGBTQ+ community in Paraguay. International law attempts to compensate through prohibition in the ACHR AND ICCPR of discrimination on the grounds of any social condition, which has been interpreted to include sexual orientation and gender identity. <br />
The lack of legal protection of the LGBTQ+ community reflects a significant broader issue, with public officials and legislators engaging in discrimination. Particularly, the lack of availability of legal gender recognition has created difficulties in accessing essential services. <br />
<br><br />
<br><br />
3. Mentally-Ill Prisoners:<br />
The rights of mentally ill prisoners are protected through the Article 68 right to health in the Paraguayan Constitution. Furthermore, the Penitentiary Code requires a framework for providing services and measures, including segregation and specialised units.<br />
<br><br />
<br><br />
4. Juveniles:<br />
The Código de la Niñez y la Adolescencia (Ley 1680/01) governs the treatment of convicted minors. It sets due process protections, requires separation from adults, establishes the focus on rehabilitation, and sets maximum durations.<br />
Concerningly, in practice juvenile facilities were reported as lacking ventilation, falling short of the standards mandated by law.<br />
<br />
</ul><br />
<br />
==Resources==<br />
- https://www.britannica.com/place/Paraguay<br />
<br />
- https://py.vlex.com/vid/ley-n-4-423-796976521<br />
<br />
- https://latintrade.com/2019/11/01/packed-with-lawyers/<br />
<br />
- https://worldpopulationreview.com/country-rankings/lawyers-per-capita-by-country<br />
<br />
- https://wipolex-resources-eu-central-1-358922420655.s3.amazonaws.com/edocs/lexdocs/laws/en/py/py052en_1.pdf<br />
<br />
- https://www.bacn.gov.py/leyes-paraguayas/3497/codigo-penal<br />
<br />
- https://www.bacn.gov.py/leyes-paraguayas/9185/ley-n-4423-organica-del-ministerio-de-la-defensa-publica<br />
<br />
- https://www.bacn.gov.py/leyes-paraguayas/2405/ley-n-210-regimen-penitenciario<br />
<br />
- https://www.bacn.gov.py/leyes-paraguayas/3013/libre-acceso-ciudadano-a-la-informacion-publica-y-transparencia-gubernamental<br />
<br />
- https://www.policianacional.gov.py/wp-content/uploads/2018/03/RESOLUCION-1344-CONDICIONES-MINIMAS-DE-PRIVACION-LIBERTAD-EN-DEPENDENCIAS-POLICIALES.pdf<br />
<br />
- https://www.bacn.gov.py/leyes-paraguayas/10351/ley-n-1500-reglamenta-la-garantia-constitucional-del-habeas-corpus</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Criminal_Justice_Systems_Around_the_World&diff=381649Criminal Justice Systems Around the World2025-05-12T13:34:36Z<p>IBJadmin: /* Country Pages */</p>
<hr />
<div>Criminal justice systems can be loosely classified as either common, civil, Islamic or socialist law in nature. However, today many jurisdictions have adopted hybrid models that combine elements of various legal systems. Many of these systems share a common set of [[Core Values | core values]]. In addition, most criminal justice systems have adopted a [[Legality Principle | legality principle]]. Almost every criminal justice system is made of of similar [[Actors in the Criminal Justice System | actors]].<br />
<br />
==Country Pages==<br />
<div style="float: left; width: 33%"><br />
<br />
*[[Afghanistan]]<br />
*[[Albania]]<br />
*[[Algeria]]<br />
*[[Andorra]]<br />
*[[Angola]]<br />
*[[Antigua and Barbuda]]<br />
*[[Argentina]]<br />
*Armenia<br />
*[[Australia]]<br />
*[[Austria]]<br />
*[[Azerbaijan]]<br />
*[[The Bahamas]]<br />
*Bahrain<br />
*[[Bangladesh]]<br />
*Barbados<br />
*[[Belarus]]<br />
*[[Belgium]]<br />
*[[Belize]]<br />
*[[Benin]]<br />
*[[Bhutan]]<br />
*[[Bolivia]]<br />
*[[Bosnia and Herzegovina]]<br />
*[[Botswana]]<br />
*[[Brazil]]<br />
*[[Brunei]]<br />
*[[Bulgaria]]<br />
*[[Burkina Faso]]<br />
*[[Burundi]] <br />
*[[Cambodia]]<br />
*[[Cameroon]]<br />
*[[Canada]]<br />
*[[Cape Verde]]<br />
*[[République Centrafricaine|Central African Republic]]<br />
*[[Chad]]<br />
*[[Chile]]<br />
*[[China]]<br />
**[[Hong Kong]]<br />
**[[Taiwan]]<br />
*[[Colombia]]<br />
*[[Comoros]]<br />
*[[Congo, Democratic Republic of the]]<br />
*[[ République du Congo (Congo-Brazzaville)|Congo, Republic of the]]<br />
*[[Costa Rica]]<br />
*[[Croatia]]<br />
*[[Cuba]]<br />
*[[Cyprus]]<br />
*[[Czech Republic]]<br />
*[[Denmark]]<br />
*Djibouti<br />
*Dominica<br />
*[[Dominican Republic]]<br />
*East Timor<br />
*[[Ecuador]]<br />
*[[Egypt]]<br />
*[[El Salvador]]<br />
*[[Equatorial Guinea]]<br />
*[[Eritrea]]<br />
*Estonia<br />
*[[Ethiopia]]<br />
*Fiji<br />
*[[Finland]]<br />
*[[France]]<br />
**French Guiana<br />
**[[French Polynesia]]<br />
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*[[Gambia, The]]<br />
*[[Georgia]]<br />
<br />
</div><div style="float: left; width:33%"><br />
<br />
*[[Germany]]<br />
*[[Ghana]]<br />
*[[Greece]]<br />
*Grenada<br />
*[[Guatemala]]<br />
*[[Guinea]]<br />
*[[Guinea-Bissau]]<br />
*Guyana<br />
*Haiti<br />
*[[Honduras]]<br />
*[[Hungary]]<br />
*Iceland<br />
*[[India]]<br />
*[[Indonesia]]<br />
*Iran<br />
*[[Iraq]]<br />
*[[Ireland]]<br />
*[[Island of Guam]]<br />
*[[Israel]]<br />
*[[Italy]]<br />
*[[Côte d’Ivoire|Ivory Coast]]<br />
*[[Jamaica]]<br />
*[[Japan]]<br />
*Jordan<br />
*[[Kazakhstan]]<br />
*[[Kenya]]<br />
*Kiribati<br />
*[[Korea, North]]<br />
*[[South Korea|Korea, South]]<br />
*Kosovo<br />
*Kuwait<br />
*[[Kyrgyzstan]]<br />
*[[Laos]]<br />
*Latvia<br />
*[[Lebanon]]<br />
*[[Lesotho]]<br />
*[[Liberia]]<br />
*Libya<br />
*Liechtenstein<br />
*[[Lithuania]]<br />
*[[Luxembourg]]<br />
*Macedonia<br />
*[[Madagascar]]<br />
*[[Malawi]]<br />
*[[Malaysia]]<br />
*Maldives<br />
*[[Mali]]<br />
*Malta<br />
*Marshall Islands<br />
*[[Mauritania]]<br />
*[[Mauritius]]<br />
*[[Mexico]]<br />
*Micronesia<br />
*[[Moldova]]<br />
*Monaco<br />
*[[Mongolia]]<br />
*[[Montenegro]] <br />
*[[Morocco]]<br />
*[[Mozambique]]<br />
*[[Myanmar]]<br />
*[[Namibia]]<br />
*Nauru<br />
*[[Nepal]]<br />
*[[Netherlands]]<br />
*[[New Zealand]]<br />
*[[Nicaragua]]<br />
*[[Niger]]<br />
*[[Nigeria]]<br />
*Norway<br />
*[[Oman]]<br />
<br />
</div><div style="float: left; width: 33%"><br />
<br />
*[[Pakistan]]<br />
*Palau<br />
*Palestine<br />
*[[Panama]]<br />
*[[Papua New Guinea]]<br />
*[[Paraguay]]<br />
*[[Peru]]<br />
*[[Philippines]]<br />
*[[Poland]]<br />
*[[Portugal]]<br />
*[[Qatar]]<br />
*[[Romania]]<br />
*[[Russia]]<br />
*[[Rwanda]]<br />
*Saint Kitts and Nevis<br />
*[[Saint Lucia]]<br />
*Saint Vincent and the Grenadines<br />
*Samoa<br />
*San Marino<br />
*[[São Tomé and Príncipe]]<br />
*[[Saudi Arabia]]<br />
*[[Senegal]]<br />
*[[Serbia]]<br />
*[[Seychelles]]<br />
*[[Sierra Leone]]<br />
*[[Singapore]]<br />
*[[Slovakia]]<br />
*Slovenia<br />
*[[Solomon Islands]]<br />
*[[Somalia]]<br />
*[[South Africa]]<br />
*[[South Sudan]]<br />
*[[Spain]]<br />
*[[Sri Lanka]]<br />
*[[Sudan]]<br />
*Suriname<br />
*[[Swaziland]]<br />
*[[Sweden]]<br />
*[[Switzerland]]<br />
*[[Syria]]<br />
*[[Tajikistan]]<br />
*[[Tanzania]] <br />
**[[Zanzibar]]<br />
*[[Thailand]]<br />
*[[Togo]]<br />
*[[Tonga]]<br />
*[[Trinidad and Tobago]]<br />
*[[Tunisia]]<br />
*[[Turkey]]<br />
*[[Turkmenistan]]<br />
*[[Tuvalu]] <br />
*[[Uganda]] <br />
*[[Ukraine]]<br />
*[[United Arab Emirates]]<br />
*United Kingdom<br />
**[[England and Wales]]<br />
**[[Scotland]]<br />
*[[United States]]<br />
**[[Puerto Rico]]<br />
*[[Uruguay]] <br />
*[[Uzbekistan]]<br />
*Vanuatu<br />
*[[Venezuela]]<br />
*[[Vietnam]] <br />
*[[Yemen]]<br />
*[[Zambia]]<br />
*[[Zimbabwe]] <br />
<br />
<br />
<br />
</div><br />
<br />
{{Languages|Criminal Justice Systems Around the World}}<br />
<br />
==We need your help==<br />
Can you assist the creation of a country-page? Email elearning@ibj.org.<br />
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----<br />
<br />
See [[Legal Aid Systems and Supporting NGOs around the world]]</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Slovakia&diff=381648Slovakia2025-05-08T10:18:03Z<p>IBJadmin: Created page with " {{Languages|English}} <div class="box" style="padding: 40px; font-size: 1.5em; font-family: Arial, sans-serif; line-height: 1.5; border: 3px solid yellow; background-color: #FFFF00; text-align: center; margin: 30px;"> ⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>. </div> {|..."</p>
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⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>.<br />
</div><br />
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<br />
{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;"> Legal Resources for Slovakia </h2><br />
* Constitution of Slovakia <ref>https://www.constituteproject.org/constitution/Slovakia_2017 <br />
</ref><br />
<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources </h2> <br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
<br />
==Background==<br />
<br />
The Slovak Republic, located in Central Europe with a population of approximately 6 million, has undergone significant historical transformations. After the dissolution of the Austro-Hungarian Empire and the Treaty of Trianon in 1920, Slovakia became part of Czechoslovakia. Following the peaceful Velvet Revolution in 1989, which ended communist rule, Slovakia emerged as an independent state on January 1, 1993, after the dissolution of the Czechoslovak federation. The Slovak Constitution, adopted on September 1, 1992, serves as the foundation of its legal system, establishing the principles of democracy, the rule of law, and the protection of fundamental rights. Slovakia joined NATO in 2004 and the European Union the same year, further solidifying its position within the international community.d the North Atlantic Treaty Organisation in () and the European Union in 2004. <br />
<br />
<br><br />
<br />
==The Legal system== <br />
<br />
The Slovak Legal system is a civil law system, as codified in the Constitution, or the Ústava Slovenskej republiky. During the Communist period ranging from 1948 until 1989, it has been influenced by Socialist legal thinking. As of the 1990s, it has also been largely shaped by the reception and implementation of EU law. <br />
<br />
The constitution was ratified on September 1, 1992 in Bratislava, following the foundation of the Slovak Republic and came into effect on January 1, 1993. <br />
<br />
The Slovak state judicial system is structured on three levels. At the local level are District Courts (Okresne súdy). Next are the Regional Courts (Krajské súdy). Finally there are the high courts, of which there are two: The Supreme Court (Najvyšší súd) is the highest court of appeal in non constitutional matters and has the power of statutory review. The Constitutional Court (Ústavný súd) has special competence to hear questions in constitutional matters, including constitutional review of statutes, decisions and official acts, as well as international agreements and other generally binding rules.<br />
<br />
<br />
==Legal Aid==<br />
<br />
<i> State Sponsored legal aid:</i><br />
ii. Legal aid is available from the commencement of legal proceedings; the accused will be appointed a public defender, if the case is such that it is mandatory by law to do so.<br />
<br />
It is also possible to apply for free legal aid if the accused’s income falls below a certain threshold.<br />
<br />
In certain cases, the accused may be assigned a lawyer regardless of their income, including if the accused (i) is in custody or in detention, (ii) has limited legal capacity, (iii) is in a healthcare facility, (iv) is a minor, (v) incapable of defending themself due to a physical or mental disability, (vi) is being charged with an offence punishable by a minimum of 10 years’ imprisonment<br />
<br />
<i>There are also a number of organisations which are able to provide legal aid in Slovakia:</i> <br />
<br />
- Human Rights League (Liga za ľudské práva): Provides free legal aid to asylum seekers, refugees, and foreigners, assisting with residence, asylum procedures, and citizenship. Offices in Bratislava and Košice. <br />
<br />
- Pro Bono Attorneys (Nadácia Pontis): Connects lawyers with non-profits in need of legal aid, focusing on helping organizations that cannot afford legal services. <br />
<br />
- Slovak National Centre for Human Rights (SNSLP): Though state sponsored, they function independently and offers free legal assistance to individuals facing discrimination in areas such as employment, education, and public services.<br />
<br><br />
<br><br />
In 2022, there were approximately 6,400 lawyers in Slovakia.<br />
<br><br />
<br><br />
<br />
==Source of Defendants Rights==<br />
<br />
<li>'''National Sources of Defendant’s rights:'''<br />
One of the basic principles of the Slovak legal order is the hierarchy of legal norms. The system of legal sources is hierarchical, forming a pyramidal structure of legal force within the legal system; the Constitution sits at the pinnacle of this structure. <br />
<br />
Legislation is categorised by what is known as legal force. Legal force refers to the properties of the legislation, one piece of legislation being subordinate to another, or when one piece of legislation is derived from another having greater legal force. <br />
<br />
In a situation involving pieces of legislation with different legal force, the weaker provision may not contradict the stronger one, whereas the stronger provision may override the weaker one. <br />
<br />
Legislation may therefore broadly be categorised according to the level of legal force: Constitutional acts are always primary; acts are either primary or derived from constitutional acts. Secondary legislation includes government regulations, legislation of central government bodies, legislation issued in exceptional circumstances by authorities other than government bodies.<br />
<br />
<br />
<br><br />
<br><br />
<li>'''International Sources of defendant’s rights:'''<br />
<br />
The hierarchy of legal sources was partially reshaped by Slovakia’s accession to the European Union. The Constitution expressly recognizes the precedence of European Union law over acts of Parliament in Article 154, SC. Thus, if a national statute is in contradiction with EU legislation, the latter prevails.<br />
<br />
<br><br />
<br><br />
==Rights of the Accused==<br />
<br />
<li> '''Right Against Unlawful Arrests, Searches and Seizures:'''<br />
The right to personal liberty is protected by Article 17(1) of the Slovak constitution. <br />
The right against unlawful arrest is protected by Article 17(4) of the Slovak Constitution.<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Unlawful Detention:'''<br />
The right against unlawful detention is protected by Article 17(3) of the Slovak Constitution<br />
<br />
<br><br />
<br><br />
<li>'''Right Not to be Tortured or Ill-Treated:'''<br />
The right against torture, or cruel, inhuman or degrading treatment or punishment is protected by Article 16(2) of the Slovak Constituion.<br />
<br><br />
<br><br />
<br />
<li>'''Right to Medical Care:'''<br />
The right to medical care is protected by Article 40 of the Slovak Constitution. Every individual has the right to free health care and medical equipment for disabilities on the basis of medical insurance under the terms to be laid down by a law<br />
<br><br />
<br><br />
<br />
<br />
<li>'''Right to be Informed of Charges:'''<br />
Upon arrest, the accused has the following rights: <br />
<br> <br />
<li> - The Right to Information:<br />
The accused must be informed of their rights orally and in writing. They are entitled to have this information translated or interpreted if they do not understand the language. The accused has the right to a description of the crime and the crime scene and evidence showing them that the crime was committed by the accused. The accused must also be informed that they can file an objection to the charge. The accused must also be given the legal definition of the crime and the criminal laws applicable to the case. <br />
<br><br />
<li>- The Right to Inform People<br />
The accused has the right to inform their family or another person named as a designated contact. However, you could be denied this right if it is believed that it could undermine the purpose of the detention. <br />
<br><br />
If the accused is not a Slovak Citizen, they have the right to request that the police inform their consulate or embassy of their arrest.<br />
<br />
<br />
<br><br />
<br><br />
<li>'''Right to Presumption of Innocence:''' <br />
The accused has the right to presumption of innocence.<br />
<br><br />
<br><br />
<br />
<br />
<li>'''Right Against Self-Incrimination:'''<br />
The accused has the right against self-incrimination. <br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Counsel:'''<br />
The right to counsel is enshrined in Article 50 of the Slovak Constitution. <br />
<br />
Section 34 of the Criminal Procedure Code also specifically addresses the right to defence, including the right to be defended by a lawyer<br />
<br />
<br><br />
<br><br />
<li>'''Right to a Present a Defense:'''<br />
Article 50 of the Slovak Constitution provides a general right to defence in all legal proceedings, including the right to present evidence, question witnesses, and respond to the case against the accused. <br />
<br />
<br><br />
<br><br />
<li>'''Right to Due Process:'''<br />
The right to due process of law is enshrined in the Slovak Constitution, but particularly under Articles 46 and 48: protecting the right to seek protection in front of an independent and impartial court and further emphasising equality before the law and the right to a fair trial.<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Equal Protection of the Laws:'''<br />
All parties to any legal proceedings shall be treated equally.<br />
<br />
<br />
<br><br />
<br><br />
<li>'''Right to Bail:'''<br />
You could be released on bail, subject to a number of conditions, such as the following: (i) surrendering your passport or other travel documents; (ii) living at a fixed address, reporting to a local police station; (iii) obeying a curfew; (iv) refraining from contacting specified people or going to certain places; (v) electronic tagging, or (vi) providing a financial guarantee for your attendance at court.<br />
<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Ex Post Facto Prosecution:'''<br />
The Slovak Constitution prevents the retroactive application of criminal laws. criminalties can also not be imposed that are harsher than the ones previously in effect. <br />
<br />
The Criminal Code similarly underlines the temporal competency of criminal procedures: ‘The criminal liability of an act is assessed and the punishment is imposed under the Act effective at the time of its commission.<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Double Jeopardy:'''<br />
<br />
The right against double jeopardy is protected by the Slovak Constitution. <br />
When finally convicted or acquitted of a criminal offence, no one may be prosecuted for the same criminal offence again. This principle does not preclude an exceptional remedies, according to the law.<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to a Fair Trial:'''<br />
<br />
<ul><li>Generally: <br />
Every person shall have the right to a fair hearing of his or her criminal case by an independent and impartial tribunal in reasonable time and in his presence, and to have an opportunity to comment on any adduced evidence, unless this Act provides otherwise.<br />
‘Everyone has the right to have his or her case tried publicly without undue delay, to be present at the proceedings and to comment on any evidences given therein. The public may be excluded only in cases laid down by a law.’ <br />
<br />
<li>Right to a Trial by Jury:<br />
The Slovak legal system does not employ a jury. The case will either be heard by a judge or a panel of judges, depending on the nature of the case.</ul><br />
<br />
<br><br />
<li>'''Right to Language Interpretation:'''<br />
The accused has the right to language interpretation if they do not speak Slovak at each stage of the criminal process. This includes during initial exchanges with the police and also in court. In court, you have the right to an interpreter free of charge and to have the written documents translated. <br />
<br><br />
<br><br />
<br />
<li>'''Capital Punishment:''' <br />
Capital punishment was completely abolished in Slovakia in 1990. <br />
<br><br />
<br><br />
<li>'''Right to Appeal:'''<br />
The accused has the right to appeal, if they feel that his or her rights ‘have been denied by a decision of a body of public administration’ . <br />
<br><br />
<br><br />
<br />
==Rights of Counsel==<br />
<br />
<b>Right to Provide Representation:</b><br />
Section 37 of the Criminal Procedure Code grants advocates the right to represent clients in criminal proceedings. It ensures that advocates can act freely and effectively to defend the rights and interests of their clients.<br />
<br />
<br />
<b>Right of Access to the Client:</b><br />
The accused has the right to contact their counsel privately i.e. without a third party present. They also have the right to be interrogated in the presence of their counsel. <br />
<br />
<br><br />
<b>Right to Confidential Communication with the Client:</b><br />
The right to confidentiality between lawyer and client is protected under Section 23 of Act 586/2017 on the Legal Profession. <br />
<br />
This duty of confidentiality is extended even to cases of temporary suspension or disbarment. <br />
<br />
<br><br />
<br />
==Means of Protecting or Enforcing Rights==<br />
a. Exclusionary Rule<br />
The use of illegally obtained evidence in court is prevented by Section 199 of the Criminal Procedure Code. <br />
<br />
b. Nullity of Procedure<br />
<br />
c. Motions<br />
Under Section 34 of the Criminal Procedure Code, the accused can submit petitions, propose evidence, and file appeals, which are forms of motions. <br />
<br />
d. Contempt<br />
Whilst contempt is not explicitly addressed, the Slovak system includes mechanisms to address behavior that disrupts judicial proceedings or disrespects the court:<br />
<br />
Section 17 and Section 18 of the Criminal Procedure Code emphasize proper conduct in court and provide for sanctions or procedural remedies if disruptions occur. <br />
<br />
e. Civil Actions<br />
<br><br />
<br><br />
==Pre-Trial Procedure==<br />
<br />
'''Police procedures'''<br />
<br />
* <li>''Complaint/information:''<br />
<br />
Article 196 of the Criminal Procedure Act states that the procedure before a criminal prosecution is initiated by either a complaint or a report made to a police officer or public prosecutor. <br />
<br />
The authorities assess the information and decide whether to initiate criminal proceedings.<br />
<br><br />
<br><br />
* <li>''Arrest, Search and Seizure Laws:''<br />
<ul><li>Arrest:</li><br />
Section 85 and 86 of the Criminal Procedure Act govern the reasons for arrest. A suspect can be detained by the police if there is reasonable suspicion that they have committed a crime, or if there is a risk of flight, tampering with evidence, or continuing criminal activity.<br />
<br />
Section 88 of the Criminal Procedure Act sets the 48-hour limit for police custody, requiring the detainee to either be released or brought before a judge within that period.<br />
<br />
For exceptionally serious crimes (e.g., terrorism), this period may be extended to 96 hours.<br />
<br />
<li> Pre-trial detention:</li><br />
<br />
The overall length of detention which the court can order during before the end of criminal proceedings, including pre- trial detention, cannot exceed:<br />
<br>12 months, if you are prosecuted for a misdemeanour (i.e. an offence committed with negligence or intentional offence punishable by a maximum term of imprisonment not exceeding five years) – of which the pre-trial custody cannot exceed 7 months;<br />
<br />
<br>36 months – if you are prosecuted for committing felony (i.e. an intentional criminal offence carrying a maximum custodial penalty of more than five years) – of which the pre-trial custody cannot exceed 19 months;<br />
<br />
<br>48 months – if you are prosecuted for committing a particularly serious offence (i.e. an offence punishable by a minimum term of imprisonment of at least ten years) – of which the pre-trial custody cannot exceed 25 months<br />
<br />
<li>Search</li><br />
A police officer may perform a search on a person if there is reasonable suspicion that a person is carrying an item (i) important to criminal proceedings, or (ii) that could endanger their own or someone else’s health<br />
<br></ul><br />
<br />
<br />
* ''Lineups and other identification procedures'': The police are authorized to conduct photo arrays and take biometric data, including fingerprints or biological samples, if legally justified<br />
<br />
<br><br />
<br />
* ''Interrogation''<br />
* <br />
The accused has the right to remain silent during a police interrogation. You have the right to access a lawyer during questioning. If you cannot afford a lawyer, you can ask for a public defender to be appointed. <br />
<br />
Once formally charged, the accused gains additional procedural protections under Section 34 of the Criminal Procedure Code,<br />
including:<br />
<br />
(i) Full access to legal counsel during all stages of interrogation.<br />
<br>(ii)The ability to review evidence against them and challenge its admissibility.<br />
<br>(iii) The right to have interrogations conducted in a language they understand, with the aid of an interpreter if necessary. <br />
<br />
<br><br />
==Court Procedures==<br />
<br />
<li>'''Pre-Trial:'''<br />
<br><br />
<ul>''i. Initial Court Appearance:<br />
''<br />
The accused is required to appear in front of a judge within 48 hours of entering into custody. This is usually increased up to 96 hours in cases of suspected terrorism. <br />
<br><br />
''ii. Charging Instrument:''<br />
If there is a sufficiently justified conclusion that a criminal offence was committed by a certain person, charges may be pressed. The process for the pressing of charges is outlined in Section 206 of the Criminal Procedure Act.<br />
<br><br />
<br />
''iii. Preliminary Hearing:''<br />
At the preliminary hearing, the court will review the indictment, and assess whether or not the evidence in your case was gathered in accordance with law. The court will also confirm your plea. If the court finds serious flaws with the indictment, it could be returned to the prosecutor. <br />
<br><br />
''iv. Discovery''<br />
Slovak law does not recognise disclosure/discovery as in common law jurisdictions. All relevant arguments and evidence should be presented to the court as soon as possible (typically in the first written submission). <br />
</ul><br />
<br />
<li>'''Trial:'''<br />
<ul>Nature of the Trial<br />
Most criminal trials take place at the district court, but if your case is complex, your trial could take place instead at the Special Criminal Court. <br />
<br />
The defendant and lawyers shall be given five working days notice from the announcement of the date of the trial. <br />
<br />
After an initial announcement of the matter by the presiding judge. This is followed by the reading of the indictment by the prosecutor, to which the defending counsel can then provide an opinion. This followed by the presentation of evidence, in the form of either witnesses, expert evidence, material evidence, documentary evidence. <br />
<br />
Following the presentation of evidence, the judge opens the floor to closing arguments of the prosecutor and defending counsel. Finally, the judge shall grant the defendant the final word before adjournment for final deliberation.</ul><br />
<br />
<li>'''Sentencing:'''<br />
<ul>Article 50, Section 1: ‘The court alone shall decide about the guilt and punishment for criminal offences.’ <br />
<br><br />
The Slovak criminal Code outlines possible sanctions in Section 31 - 33. There are broadly two kinds of sanctions in Slovakia: punishments and protective measures. <br />
<br><br />
Punishments include sentences in prison, forfeiture of assets or monetary penalties. <br />
<br><br />
Protective actions can involve protective supervision or education for instance. <br />
<br><br />
A prison sentence may be imposed as a punishment for a specified period of up to twenty-five years or a life prison sentence.</ul><br />
<br />
<li>'''Appeals:'''<br />
<ul>The defendant has the right to appeal against a sentence. Your appeal should be made within 15 days from the date the decision in your case is handed down. If you were not present at the court, you must appeal within 15 days from receiving the decision in writing. If you do not announce your appeal, you are assumed to have decided not to exercise this right. Your appeal must include a statement of the reasons why you believe the decision made by the court was wrong. <br />
<br />
The defendant has a right to counsel during the appeal.<br />
<ul>i. Ineffective Assistance of Counsel:<br />
Whilst the ineffective assistance of counsel is not explicitly mentioned, the Criminal Procedure Code does outline the rights and obligations of the counsel in Section 44. <br />
<br><br />
ii. Other Grounds for Appeal:<br />
<br />
Appeals can be filed under Section 368 of the Criminal Procedure Code if a final court decision violated the law or if procedural violations occurred. Grounds include judgments, resolutions on case referrals, or the imposition of protective measures. <br />
<br><br />
iii. Collateral Remedies (Habeas etc…):<br />
The possibility for a retrial is outlined in Sections 393 to 405. Retrials can be granted if significant new evidence arises or procedural violations are discovered. Habeas corpus procedures are not directly discussed, but provisions for addressing unjust imprisonment may be implied in protective and appellate procedures. <br />
</ul><br />
</ul><br />
<br><br />
<br />
==Rights in Prison==<br />
<br />
<br />
<li>'''Right to Humane Conditions of Confinement:'''<br />
<br><br />
The right to () is enshrined in the Constitution of the Slovak Republic. <br />
<br />
It is further emphasised in Act No. 475/2005 Coll. on the Execution of Imprisonment:<br />
<br />
‘Vo výkone trestu sa rešpektuje ľudská dôstojnosť odsúdeného a nesmú byť použité kruté, neľudské alebo ponižujúce spôsoby zaobchádzania alebo trestania.’ <br />
<br />
In the execution of sentences, the human dignity of the convicted person shall be respected and cruel, inhuman or degrading methods of treatment or punishment shall not be used. <br />
<br />
Section 18 and 22 outline the minimum living space requirement and the right to basic hygiene provisions, such as soap. <br />
<br />
A charged person is accommodated in cells while an area for one person placed in a cell is at least 3,5 m2. <br />
<br />
<br />
<br><br />
<br><br />
'''Immigrant’s Rights in Detention:'''<br />
<br>Alien individuals have the right to inform their diplomatic mission of their admission to the execution of the sentence. They shall be allowed a visit from a representative of this authority, from whom they may receive magazines, books and daily newspapers. They shall be placed in accommodation with others of the same nationality/ who speak the same language. <br />
<br><br />
<br><br />
<li>'''Right to Medical Care in Prison:'''<br />
<br>The Constitution of the Slovak Republic mandates that ‘Everyone shall have the right to protection of his or her health. The citizens shall have the right to free health care and medical equipment for disabilities on the basis of medical insurance under the terms to be laid down by a law.’ <br />
<br />
<br />
Whilst detained, prisoners have the right to basic healthcare provided by the authorities. <br />
<br />
The institute shall provide a monetary allowance to a convicted person who does not have the monetary means to purchase medicines, medical treatment or medical devices prescribed by a doctor and which cannot be provided free of charge on the basis of health insurance<br />
<br />
<br><br />
<br><br />
<li>'''Rights of Special Populations:'''<br />
<br><br />
1. Women:<br />
Women are housed separately from men in prisons. <br />
Women are entitled to 4msq of accommodation space. This may not be reduced for pregnant women. <br />
They are also allowed to shower daily. <br />
<br><br />
<br><br />
2. GLBT Prisoners:<br />
There is no special protection afforded to LGBT prisoners in the Slovak Republic. <br />
<br><br />
<br><br />
3. Juveniles:<br />
The criminal age of responsibility in Slovakia is 14 years. The details for the imprisonment of juveniles in Slovakia are outlined in Section 117 of the criminal Code. <br />
<br />
For child offenders, the length of imprisonment is reduced to one half of what would be imposed for a similar offence committed by an adult. Nevertheless, the maximum length of imprisonment cannot exceed 7 years and the minimum length cannot exceed two years. The only exemption from this rule is the situation when a child commits a particularly serious crime, which could be otherwise punishable by imprisonment with the minimum rate exceeding 10 years. <br />
<br />
Children under 18 years of age must serve an imprisonment sentence in the juvenile correctional facility, located in Sučany. <br />
<br />
</ul><br />
<br />
==Resources==<br />
- http://www.jafbase.fr/docUE/Slovaquie/COde%20ProcCvi.pdf <br />
<br />
- https://e-justice.europa.eu/169/EN/defendants_criminal_proceedings?SLOVAKIA&action=max<br />
imizeMS&clang=en&idSubpage=2&member=1<br />
<br />
- https://www.constituteproject.org/constitution/Slovakia_2017<br />
<br />
- https://www.fairtrials.org/app/uploads/2022/01/Criminal-Proceedings-and-Defence-Rights-in-Slovakia.pdf <br />
<br />
- https://www.hrl.sk/en/about-us/vision-and-mission<br />
<br />
- https://www.nadaciapontis.sk/en/<br />
<br />
- https://www.snslp.sk/en/<br />
<br />
- https://www.fairtrials.org/app/uploads/2022/01/Criminal-Proceedings-and-Defence-Rights-in-Slovakia.pdf<br />
<br />
- Criminal Procedure Code<br />
<br />
- The Slovak Criminal Code: https://www.unodc.org/uploads/icsant/documents/Legislation/Slovakia/201124_CC_en.pdf<br />
<br />
- Execution of Imprisonment Act: https://www.zakonypreludi.sk/zz/2005-475</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=Criminal_Justice_Systems_Around_the_World&diff=381647Criminal Justice Systems Around the World2025-05-08T09:09:35Z<p>IBJadmin: /* Country Pages */</p>
<hr />
<div>Criminal justice systems can be loosely classified as either common, civil, Islamic or socialist law in nature. However, today many jurisdictions have adopted hybrid models that combine elements of various legal systems. Many of these systems share a common set of [[Core Values | core values]]. In addition, most criminal justice systems have adopted a [[Legality Principle | legality principle]]. Almost every criminal justice system is made of of similar [[Actors in the Criminal Justice System | actors]].<br />
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{{Languages|Criminal Justice Systems Around the World}}<br />
<br />
==We need your help==<br />
Can you assist the creation of a country-page? Email elearning@ibj.org.<br />
<br />
----<br />
<br />
See [[Legal Aid Systems and Supporting NGOs around the world]]</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=S%C3%A3o_Tom%C3%A9_and_Pr%C3%ADncipe&diff=381646São Tomé and Príncipe2025-05-06T15:04:01Z<p>IBJadmin: </p>
<hr />
<div><br />
{{Languages|English}}<br />
<br />
<div class="box" style="padding: 40px; font-size: 1.5em; font-family: Arial, sans-serif; line-height: 1.5; border: 3px solid yellow; background-color: #FFFF00; text-align: center; margin: 30px;"><br />
⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>.<br />
</div><br />
<br />
<br />
{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;"> Legal Resources for São Tomé and Príncipe </h2><br />
* The Constitution of the Democratic Republic of São Tomé and Príncipe <ref>https://www.constituteproject.org/constitution/Sao_Tome_and_Principe_2003?utm_source=chatgpt.com<br />
</ref><br />
<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources </h2> <br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
<br />
==Background==<br />
<br />
São Tomé and Príncipe is a small island nation located in the Gulf of Guinea, off the western coast of Central Africa. It gained independence from Portugal on July 12, 1975, and is Africa’s second-smallest country by both area and population. Its capital, São Tomé, is situated on the main island of the same name, which, along with Príncipe, constitutes the archipelago. <br />
<br><br>The country has a population of approximately 223,000 people (2023 estimate), with most inhabitants being of African descent, descended from various ethnic groups including the Forros, Angolares, and descendants of freed slaves. Portuguese is the official language, and most people speak Forro (a creole dialect) as a lingua franca.<br />
<br><br>São Tomé and Príncipe has a mixed economy, heavily reliant on agriculture (notably cocoa production) and increasingly on tourism. Political stability has improved significantly in recent decades, but the country still faces economic challenges, including poverty and reliance on external aid.<br />
<br />
<br><br />
<br />
==The Legal system==<br />
São Tomé and Príncipe has a <u>civil law system</u>, rooted in Portuguese legal traditions. The country's legal framework is based on the '''1975 Constitution''', last amended in 2003, which establishes a multi-party democratic system with three branches of government:<br />
<ol><li>''Executive'': Led by the President and the Prime Minister.<br />
<li>''Legislative'': A unicameral National Assembly.<br />
<li> ''Judiciary'': Includes the Supreme Court of Justice, regional courts, and specialized courts.<br />
<br><br>The judiciary operates independently and has jurisdiction over constitutional matters, criminal justice, and civil disputes.</ol><br />
<br />
<br><br />
<br />
==Legal Aid==<br />
<br>'''State-Sponsored Legal Aid in São Tomé and Príncipe'''<br />
<br><u>Article 44 of the Constitution</u> of São Tomé and Príncipe guarantees the right to legal assistance for all citizens who cannot afford to hire a lawyer. This provision ensures that individuals facing criminal charges have access to free legal aid if they cannot bear the cost of hiring defense counsel. This is particularly significant given that many individuals in the country live below the poverty line.<br />
<br><br>The free legal assistance provided by the state is meant to ensure access to justice for those who cannot afford private counsel. The defense counsel assigned by the state must meet certain standards, including competence and independence. However, resources for legal aid remain limited, and the quality and availability of defense counsel can vary. There is no specific mention of an agency directly responsible for overseeing legal aid, but the Ministry of Justice is typically involved in coordinating these services. Legal aid is considered a right under the Constitution, but in practice, the effectiveness of the program is hindered by the limited number of lawyers and resources available to the government.<br />
<br><br><br />
When a defendant claims an inability to pay for legal representation, they are asked to declare their financial status, including providing a list of assets. This procedure is similar to what is practiced in some other countries to assess the need for public funding of legal services.<br />
<br><br><br />
'''Non-Governmental Organizations (NGOs) Providing Pro Bono Legal Aid'''<br />
<br>Although the state-sponsored legal aid system exists, it is not always fully effective due to the lack of sufficient resources, both financial and human. As a result, several non-governmental organizations (NGOs) provide pro bono legal aid to the population. These organizations often focus on marginalized groups such as women, children, and rural communities who are most vulnerable to human rights violations and lack access to justice.<br />
<br><br>A few examples of NGOs involved in providing legal aid include:<br />
<li>''The São Tomé and Príncipe Bar Association'' (Ordem dos Advogados de São Tomé e Príncipe), which sometimes coordinates pro bono legal services in cooperation with international NGOs.<br />
<li>''International Development Organizations'', such as the United Nations Development Programme (UNDP), which have supported the development of legal aid mechanisms in the country.<br />
<li>''Local Human Rights Organizations'', which focus on issues such as gender-based violence and child protection, and offer legal services to victims of human rights violations.<br />
<br><br>These NGOs play a crucial role in bridging the gap in legal services, especially for those who cannot access the limited state-sponsored legal aid.<br />
<br><br><br />
'''Number of Lawyers'''<br />
<br>As of recent data, the legal profession in São Tomé and Príncipe is small, with approximately 50 practicing lawyers in the country. This number is low compared to other nations and reflects the challenges in providing adequate legal services. Most lawyers are based in the capital, São Tomé, and work in both the civil and criminal fields, although the demand for legal services often exceeds the available legal workforce.<br />
<br><br><li> ''Prosecutors and Judges'': In 2023, the country had approximately 40 prosecutors and around 70 judges, with a significant concentration of the judiciary in urban areas.<br />
<br><br>The small legal community poses challenges in ensuring that every defendant, particularly in rural areas, has access to competent legal counsel. Many lawyers may also work multiple roles within the legal system, further stretching the resources available to the public.<br />
<br><br>'''Challenges to Access to Justice'''<br />
<br>While the constitutional guarantee for free legal aid exists, its implementation faces challenges, including:<br />
<li><u>Limited Resources:</u> Insufficient government funding for legal aid services and a lack of legal professionals available to provide assistance, especially outside of urban centres.<br />
<li><u>Awareness:</u> There is a lack of widespread public knowledge regarding the availability of free legal assistance, which prevents many citizens from requesting help when they need it.<br />
<li><u>Capacity and Quality of Legal Aid:</u> Even when free legal aid is available, the limited number of experienced and well-trained defence lawyers results in unequal access to justice, particularly for those accused of serious crimes or complex legal matters.<br />
<br><br><br />
'''International Support and Partnerships'''<br />
<br>To address these issues, various international organisations, including the ''United Nations Development Programme (UNDP)'', have supported legal aid efforts in São Tomé and Príncipe, providing both funding and expertise. Additionally, partnerships with regional organizations have facilitated legal reform efforts aimed at enhancing the effectiveness of legal aid and improving the country's overall legal system.<br />
<br><br>In conclusion, while São Tomé and Príncipe has a legal framework that guarantees the right to legal aid, the actual provision of these services is constrained by limited resources, a small legal community, and logistical barriers. The role of NGOs and international partnerships remains critical in expanding access to justice for the country’s most vulnerable populations.<br />
<br />
<br />
<br />
<br />
These groups focus on raising awareness of legal rights, offering mediation services, and advocating for human rights protections.<br />
<br />
<br />
<br><br />
<br><br />
<br />
==Source of Defendants Rights==<br />
<br />
<li>'''National Sources of Defendant’s rights:'''<br />
<br />
<ul><li><u>The Constitution (1975, as amended)</u>: Guarantees fundamental rights such as liberty, presumption of innocence, and access to counsel.<br />
<li><u>The Penal Code (adapted from Portuguese law)</u>: Outlines criminal offences, penalties, and procedural rights.<br />
<li><u>The Civil Procedure Code</u>: Regulates the functioning of the judiciary and the administration of justice.<br />
<br />
</ul><br><br />
<li>'''International Sources of defendant’s rights:'''<br />
<br>São Tomé and Príncipe is a party to several international treaties, including:<br />
<ul><li><u>The African Charter on Human and Peoples’ Rights<br />
<li>The International Covenant on Civil and Political Rights (ICCPR)<br />
<li>The Convention Against Torture (CAT)</u></ul><br />
<br />
<br><br />
<br />
==Rights of the Accused==<br />
<br />
<li> '''Right Against Unlawful Arrests, Searches and Seizures, or Detention:'''<br />
<br><u>The Constitution of São Tomé and Príncipe (art. 36)</u> ensures that no individual may be deprived of their liberty except in cases provided by law and always by decision or under the supervision of the appropriate court. <br />
<br>This provision safeguards individuals from arbitrary arrests and detentions.<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right Not to be Tortured or Ill-Treated:'''<br />
<br>The Constitution explicitly states that the moral and physical integrity of individuals is inviolable. It prohibits subjecting anyone to torture or to cruel, inhuman, or degrading treatment or punishment. <br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Medical Care:'''<br />
<br>While the Constitution does not explicitly mention the right to medical care, it emphasizes the inviolability of personal integrity, which implies the necessity of access to medical services to maintain one's health and well-being.<br />
<br />
<br><br />
<br><br />
<br />
<br />
<li>'''Right to be Informed of Charges:'''<br />
<br>The Constitution mandates that criminal procedures must ensure all defense guarantees. This includes informing the accused of the charges against them, allowing for adequate preparation of their defense.<br />
<br />
<br><br />
<br><br />
<li>'''Right to Presumption of Innocence:''' <br />
Every accused person is presumed innocent until proven guilty. The Constitution requires that trials be conducted in the shortest time compatible with defence guarantees, upholding the principle of presumed innocence.<br />
<br><br />
<br><br />
<br />
<br />
<li>'''Right Against Self-Incrimination:'''<br />
<br>The Constitution ensures that all evidence obtained through torture, coercion, or offenses to the physical or moral integrity of a person is null and void. This provision protects individuals from being compelled to incriminate themselves. <br />
<br><br />
<br><br />
<br />
<li>'''Right to Counsel and Effective Assistance:'''<br />
<br>The accused has the right to choose defense counsel and to be assisted by them in all acts of the trial. The law specifies instances where such assistance is obligatory, ensuring effective legal representation. <br />
<br />
<br><br />
<br><br />
<li>'''Right to Fair Trial and Due Process:'''<br />
<br>Criminal procedures are designed to assure all defense guarantees, including the right to a fair and public trial. The Constitution emphasizes that no case may be removed from the court whose competence has been established by prior law, ensuring due process. <br />
<br />
<br><br />
<br><br />
<li>'''Right to Bail:'''<br />
<br>While the Constitution does not explicitly mention the right to bail, it provides that no one may be deprived of freedom except in cases provided for by law and always by decision or with the review of the appropriate court. This implies that legal provisions exist regarding detention and possible release conditions. <br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Ex Post Facto Prosecution:'''<br />
<br><u>The Constitution (art. 37)</u> stipulates that no one may be sentenced criminally except by virtue of prior law that declares punishable the action or omission. However, penal laws are applied retroactively when their content is more favorable to the accused or sentenced. <br />
<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Double Jeopardy:'''<br />
<br>The Constitution does not explicitly mention protection against double jeopardy. However, the general principles of criminal law and procedural guarantees aim to protect individuals from being tried or punished more than once for the same offense.<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Language Interpretation:'''<br />
<br>While the Constitution does not explicitly provide a right to language interpretation, the assurance of all defense guarantees in criminal procedures implies that the accused should understand the proceedings. This would necessitate interpretation services when needed. <br />
<br />
<br><br />
<br><br />
<br />
==Rights of Counsel==<br />
<br />
<li>'''Right of Access to the Client and Confidential Communication'''<br />
<br>Defense attorneys are entitled to meet with their clients in private, without interference, to prepare a robust defense.<br />
<li>'''Right to Information'''<br />
<br>Lawyers must be granted access to evidence and case files to ensure transparency and adequate preparation.<br />
<br />
<br><br><br />
<br />
==Means of Protecting and Enforcing Rights==<br />
<br />
'''Exclusionary Rule:'''<br />
<br>- Evidence obtained in violation of fundamental rights or freedoms is inadmissible in court.<br />
<br>- This ensures that investigations and prosecutions are conducted within the limits of constitutional guarantees, safeguarding individual liberties.<br />
<br />
'''Nullity of Procedure:'''<br />
<br>The law provides mechanisms to nullify legal proceedings in specific situations:<br />
<br />
<li><u>Definitive Dismissal</u><br />
<br>Occurs when the court concludes that:<br />
<ol><li>The crime has not been committed.<br />
<li>The established facts do not constitute a crime.<br />
<li>Those prosecuted are exempt from criminal liability. </ol><br />
<br><br />
<li><u>Provisional Dismissal</u><br />
<br>Occurs when:<br />
<ol><li>Evidence is insufficient to demonstrate that a crime was committed.<br />
<li> Perpetrators, accomplices, or accessories remain unidentified despite proof of a criminal act.<br />
<li> The defendant’s dementia or severe health condition prevents them from defending themselves until recovery.</ol><br />
<br><br />
<li><u>Impact of Dismissals</u><br />
<ul><li>Final Dismissal: The case is permanently closed and cannot be reopened.<br />
<li>Provisional Dismissal: Proceedings remain open until new information or evidence arises unless the case is prescribed (time-barred).</ul><br />
<br><br />
<li><u>Special Cases</u><br />
<ul><li>If the defendant dies, proceedings may continue regarding the confiscation of goods or money acquired through the criminal act.<br />
<li>In such cases, heirs or legal representatives are held civilly liable unless they renounce ownership of the confiscated assets.</ul><br />
<br><br />
<li><u>Prosecutor's Request for Dismissal</u><br />
<ul><li>If the Public Prosecutor requests dismissal and no private prosecution is established, the court must notify interested parties. These parties have 15 days to pursue the criminal action if they deem it appropriate.<br />
<li>Failure to act within this timeframe leads to the withdrawal of both criminal and civil actions within the criminal process.</ul><br />
<br />
<br><br />
<br><br />
'''Civil Actions:'''<br />
<br> Victims of human rights violations can pursue remedies through civil litigation. Key avenues include:<br />
<ol><li>''Damages or Injunctions'': Plaintiffs may seek compensation or the cessation of human rights violations.<br />
<li>''Appeals to International Bodies'': Domestic decisions can be appealed to the European Court of Human Rights (ECHR).<br />
<li>''Ombudsman Assistance'': The national ombudsman protects and defends citizens' basic rights and freedoms.</ol><br />
<br />
'''Procedures in Civil Litigation'''<br />
<br> The Civil Procedure Code outlines two main procedural types:<br />
<ol><li><u> Ordinary Procedure</u><br />
<ul><li>Applies to cases involving amounts equal to or greater than €20,000, undetermined amounts, or matters not assigned a special procedure.<br />
<li>Structure:<br />
<br>- Written phase (demand, notification, and response).<br />
<br>- Preliminary hearing.<br />
<br>- Oral trial. </ul><br />
<li><u>Abbreviated Procedure</u><br />
<ul><li>Applies to cases involving amounts up to €20,000, matters with no specific procedure, or those governed by special procedures.<br />
<li>Structure:<br />
<br>- Written phase (allegations).<br />
<br>- Oral trial.<br />
<br>- Sentence (appealable if the claim exceeds €1,500). </ul></ol><br />
<br />
'''Special Procedures:'''<br />
<br>Certain cases—such as injunctions, family law matters, or labor disputes—are governed by distinct procedural rules.<br />
<br />
<br><br />
<br />
==Pre-Trial Procedure==<br />
<br />
In São Tomé and Príncipe, the Constitution and national laws provide several mechanisms to address police misconduct and ensure the protection of individual rights.<br />
<br />
<br>'''Constitutional Protections:'''<br />
<li>''' ''Habeas Corpus:'' ''' <u>Article 39 of the Constitution </u> grants citizens the right to habeas corpus in cases of imprisonment or illegal detention resulting from abuse of power. This legal action can be filed before the court, with procedures defined by law. <br />
<li>''' ''Criminal Procedure Guarantees:'' ''' <u>Article 40</u> ensures that criminal procedures uphold all defence guarantees, including the presumption of innocence, the right to a speedy trial, the right to choose and be assisted by defence counsel, and the exclusion of evidence obtained through torture or coercion. <br />
<br />
<br><br>'''Police Oversight and Complaints:'''<br />
<br>The national police and immigration services are under the Ministry of Defense and Public Security, which supervises and controls the military. Despite increased personnel and training, the police have faced challenges related to effectiveness and corruption. Impunity remains a concern, and efforts to reform the Criminal Investigation Police have been hindered by inadequate resources. <br />
<br><br>While the government permits human rights monitors to visit prisons and detention centres, there were no such visits reported in the past year. The Ministry of Justice is responsible for investigating and monitoring prison and detention center conditions. <br />
<br />
<br><br>'''Arrest and Detention Laws:'''<br />
<br>The law requires arrest warrants issued by an authorized official unless a suspect is caught in the act of committing a crime. Detainees must be informed promptly of charges against them and are allowed prompt access to family members and legal representation. A functioning bail system exists; however, severe budgetary constraints have resulted in lengthy pretrial detentions, with some detainees held for more than a year. <br />
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<br><br><br><br />
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==Court Procedures==<br />
Under the <u>Criminal Procedure Code of São Tomé and Príncipe</u>, a criminal proceeding follows a similar structure to many other legal systems, comprising four distinct stages : investigation, indictment and plea, main trial, and legal remedy. Below is a detailed breakdown of the procedures based on the Criminal Procedure Code and the practices in São Tomé and Príncipe.<br />
<br><br><br />
'''PRE-TRIAL:'''<br />
<br><li>'''Initial Court Appearance'''<br />
<br>Under the Criminal Procedure Code, the pre-trial stage begins with an initial appearance before a judge. This stage allows the judge to review the circumstances of the detention and determine whether it is lawful. The defendant must be informed of the charges against them and their rights, including the right to counsel and to remain silent. The judge must ensure that the defendant understands the charges and their legal rights at the time of the initial court appearance. A hearing is held to decide on the necessity of detention, and the judge has the discretion to order the release of the defendant if the detention is deemed unlawful or unnecessary.<br />
<br><br><li>'''Charging Instrument'''<br />
<br>The indictment is a key legal instrument in criminal proceedings. The prosecution is responsible for preparing the indictment, which formally charges the defendant with specific crimes. In São Tomé and Príncipe, once an indictment is filed by the public prosecutor in the Basic Court, a judge is assigned to the case. The Code stipulates that the indictment should detail the specific facts and legal provisions upon which the charges are based. The defendant has the right to receive a copy of the indictment before the trial, ensuring they are informed of the charges and the evidence against them.<br />
<br><br><li>'''Preliminary Hearing'''<br />
<br>Following the filing of the indictment, a preliminary hearing may be held. This hearing serves to review the charges, determine the admissibility of evidence, and address any motions related to the case, such as requests for bail or dismissal. During the hearing, the court will verify whether the defendant understands the charges and allow them to enter a plea (guilty or not guilty). A second hearing may be scheduled, typically within a certain timeframe, to allow further review of the case or motions.<br />
<br><br><li>'''Pre-Trial Motions'''<br />
<br>The Criminal Procedure Code also allows for various pre-trial motions. These motions can be filed to challenge the evidence, request the exclusion of certain materials, or question the validity of the charges. The judge will rule on such motions before proceeding to the main trial, ensuring that any procedural errors or violations are addressed.<br />
<br><br><li>'''Discovery'''<br />
<br>The discovery process in São Tomé and Príncipe allows the defence to obtain evidence held by the prosecution. Upon the filing of an indictment, the state prosecutor is required to provide the defendant with all evidence that will be presented during the trial. This ensures that the defendant has the opportunity to prepare a defense and contest the evidence presented by the prosecution.<br />
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<br><br />
'''TRIAL:'''<br />
<br><br><li>'''Nature of the Trial'''<br />
<br>The main trial in São Tomé and Príncipe is conducted before a judge or a panel of judges. <br />
<br><u>Article 9 of the Criminal Procedure Code</u> stipulates that if the prosecution has sufficient evidence, it will proceed with filing the indictment. The trial itself is public, and the judge or panel of judges hears both the prosecution's and the defense's arguments. In the absence of a jury system, the judge(s) have full responsibility for the trial's outcome. The judge(s) can ask questions during the trial to clarify facts or direct the proceedings.<br />
<br><br><li>'''Defendant's Rights'''<br />
<br>The defendant has several important rights during the trial:<br />
<ul><li>''Right to make statements:'' <br>The defendant has the right to address all facts and evidence that may incriminate or favor them.<br />
<li>''Right to summon witnesses:'' <br>The defendant may request that witnesses testify on their behalf, subject to the court's approval.<br />
<li>''Right to cross-examine:'' <br>The defendant has the right to question witnesses who testify against them and challenge the evidence presented.</ul><br />
<br><br><li>'''Lawyers'''<br />
<br>The role of defence lawyers in São Tomé and Príncipe is critical. They ensure that the defendant’s rights are upheld during the trial and help present arguments in favor of the defendant. <br />
<br><br>However, due to limited resources, there is often a challenge in accessing skilled and experienced defense counsel, especially for those who cannot afford private representation. In some cases, NGOs provide pro bono legal aid to help ensure that justice is accessible to all.<br />
<br><br><li>'''Expert Witnesses'''<br />
<br>According to the <u>Criminal Procedure Code</u>, expert witnesses may be summoned to provide specialised knowledge or clarify evidence. Expert testimony is presented in the form of written reports, and the court may call experts to testify in person. The prosecution or defense can request the assistance of expert witnesses in relevant fields, such as forensic analysis or psychological evaluation.<br />
<br><br><li>'''Judges'''<br />
<br>The conduct of the trial depends on the judge or judges overseeing the case. In criminal cases, there may be a single judge or a panel of judges. A single judge handles less complex cases, while a panel of judges may be used for more serious offenses. The judge is responsible for ensuring a fair trial, ruling on motions, and ultimately delivering a verdict based on the facts presented.<br />
<br><br><li>'''Victims'''<br />
<br>Victims of crimes also have rights during the trial. According to the Criminal Procedure Code, victims can:<br />
<ul><li>''Participate as parties'' in the trial, including the right to make statements and present evidence.<br />
<li> ''Request restitution'' for harm suffered as a result of the crime.<br />
<li> ''Examine witnesses'' and present their case to the court.</ul><br />
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<br><br />
<br><br />
'''SENTENCING'''<br />
<br><br>After the trial concludes, the judge or panel of judges will issue a sentence. <u>The Criminal Procedure Code</u> outlines the guidelines for sentencing, ensuring that the punishment is proportionate to the crime. However, there have been concerns about the quality of judgments, as reported in some reports, with calls for better training for judges and more consistent application of sentencing guidelines.<br />
<br><br />
<br><br />
'''APPEALS'''<br />
<br><li>'''Right to Appeal'''<br />
<br>Both the defence and prosecution have the right to appeal a decision to a higher court. <u>Article 368 of the Criminal Procedure Code</u> allows for an appeal following the announcement of a judgment, enabling the parties to challenge the verdict or the sentence. Appeals can be based on procedural errors, violations of rights, or misapplication of the law.<br />
<br><br><li>'''Other Grounds for Appeal'''<br />
<br>Appeals can be filed against a pre-trial judge’s decision (such as a ruling on detention) or a ruling concerning punishment. The Court of Appeals reviews these decisions, ensuring that there are no legal or procedural flaws that would undermine the fairness of the trial.<br />
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==Rights in Prison==<br />
<br />
<br><li>'''Death Penalty'''<br />
<br>São Tomé and Príncipe abolished the death penalty for all crimes in 1990. On January 10, 2017, the country ratified the <u>Second Optional Protocol to the International Covenant on Civil and Political Rights,</u> reinforcing its commitment to the abolition of capital punishment. <br />
<br />
According to Amnesty International São Tomé and Príncipe is classified as abolitionist for all crimes. <br />
<br />
<br><br><li>'''Detention Conditions'''<br />
The nation's sole prison has faced challenges, including overcrowding and deteriorating infrastructure. Reports indicate that the facility operated at 20% over its capacity, leading to harsh conditions for inmates. <br />
<br />
<br><br>In March 2022, efforts to address these issues included the inauguration of a new prison wing constructed with support from the United Nations. <br />
<br />
<br><br><li>'''Torture'''<br />
<br>While specific information regarding the ratification of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by São Tomé and Príncipe is not readily available, the U.S. Department of State's 2022 Country Report on Human Rights Practices did not highlight torture as a prevalent issue in the country. <br />
<br />
<br><br><li>'''Corporal Punishment'''<br />
<br>There is limited publicly available information detailing the current legal stance on corporal punishment within São Tomé and Príncipe's prison system. Further research or official sources would be required to provide an accurate account of any existing policies or practices.<br />
<br />
<br><br><li>'''Medical Care'''<br />
<br>Medical care within the prison system has been a concern, with reports highlighting a lack of basic medical supplies and accommodations for prisoners with disabilities. In emergencies, prisoners are typically transferred to the national hospital for treatment. <br />
<br />
<br><br>'''Juveniles'''<br />
<br>Specific provisions regarding the treatment and detention of juveniles in São Tomé and Príncipe are not extensively documented in the available sources. Ensuring the protection of minors within the justice system remains a critical aspect of upholding human rights standards.<br />
<br><br>In summary, São Tomé and Príncipe has made significant strides in human rights, notably through the abolition of the death penalty. <br>However, challenges persist in the prison system, particularly concerning overcrowding, infrastructure, and medical care. Addressing these issues is essential to align with international human rights norms and ensure the well-being of all detainees.<br />
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<br><br><br><br />
<br />
==Resources==<br />
<li>Britannica. (n.d.). São Tomé. Retrieved from https://www.britannica.com/place/Sao-Tome<br />
<li>Constitute Project. (2003). São Tomé and Príncipe’s Constitution of 2003. Retrieved from https://www.constituteproject.org/constitution/Sao_Tome_and_Principe_2003<br />
<li>United Nations Sustainable Development Group. (2022). UNSDCF São Tomé and Príncipe 2023–2027. Retrieved from https://unsdg.un.org/sites/default/files/2022-11/UNSDCF_Sao%20Tome%20and%20Principe_2023-2027.pdf<br />
<li>FAOLEX. (n.d.). Law No. 8/2001 (Framework Law on the Environment). Retrieved from https://faolex.fao.org/docs/pdf/sao117335E.pdf<br />
<li>International Center for Not-for-Profit Law (ICNL). (n.d.). São Tomé and Príncipe: Civic Freedom Monitor. Retrieved from https://www.icnl.org/research/library/sao-tome-and-principe_st001pt/<br />
<li>NYU Globalex. (n.d.). Research Guide: São Tomé and Príncipe. Retrieved from https://www.nyulawglobal.org/globalex/sao_tome_principe.html<br />
<li>World Coalition Against the Death Penalty. (n.d.). São Tomé and Príncipe. Retrieved from https://worldcoalition.org/pays/sao-tome-and-principe/<br />
<li>Amnesty International. (n.d.). São Tomé and Príncipe – Africa. Retrieved from https://www.amnesty.org/en/location/africa/sao-tome-and-principe/<br />
<li>U.S. Department of State. (2022). 2022 Country Reports on Human Rights Practices: São Tomé and Príncipe. Retrieved from https://www.state.gov/reports/2022-country-reports-on-human-rights-practices/sao-tome-and-principe/<br />
<li>Freedom House. (2024). São Tomé and Príncipe: Freedom in the World 2024. Retrieved from https://freedomhouse.org/country/sao-tome-and-principe/freedom-world/2024<br />
<li>Borgen Magazine. (n.d.). Human Rights in São Tomé and Príncipe. Retrieved from https://www.borgenmagazine.com/human-rights-in-sao-tome-and-principe/</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=S%C3%A3o_Tom%C3%A9_and_Pr%C3%ADncipe&diff=381645São Tomé and Príncipe2025-05-06T14:59:31Z<p>IBJadmin: /* Resources */</p>
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* The Constitution of the Democratic Republic of São Tomé and Príncipe <ref>https://www.constituteproject.org/constitution/Sao_Tome_and_Principe_2003?utm_source=chatgpt.com<br />
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* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
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<br />
==Background==<br />
<br />
São Tomé and Príncipe is a small island nation located in the Gulf of Guinea, off the western coast of Central Africa. It gained independence from Portugal on July 12, 1975, and is Africa’s second-smallest country by both area and population. Its capital, São Tomé, is situated on the main island of the same name, which, along with Príncipe, constitutes the archipelago. <br />
<br><br>The country has a population of approximately 223,000 people (2023 estimate), with most inhabitants being of African descent, descended from various ethnic groups including the Forros, Angolares, and descendants of freed slaves. Portuguese is the official language, and most people speak Forro (a creole dialect) as a lingua franca.<br />
<br><br>São Tomé and Príncipe has a mixed economy, heavily reliant on agriculture (notably cocoa production) and increasingly on tourism. Political stability has improved significantly in recent decades, but the country still faces economic challenges, including poverty and reliance on external aid.<br />
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==The Legal system==<br />
São Tomé and Príncipe has a <u>civil law system</u>, rooted in Portuguese legal traditions. The country's legal framework is based on the '''1975 Constitution''', last amended in 2003, which establishes a multi-party democratic system with three branches of government:<br />
<ol><li>''Executive'': Led by the President and the Prime Minister.<br />
<li>''Legislative'': A unicameral National Assembly.<br />
<li> ''Judiciary'': Includes the Supreme Court of Justice, regional courts, and specialized courts.<br />
<br><br>The judiciary operates independently and has jurisdiction over constitutional matters, criminal justice, and civil disputes.</ol><br />
<br />
==Legal Aid==<br />
<br><br>'''State-Sponsored Legal Aid in São Tomé and Príncipe'''<br />
<br><u>Article 44 of the Constitution</u> of São Tomé and Príncipe guarantees the right to legal assistance for all citizens who cannot afford to hire a lawyer. This provision ensures that individuals facing criminal charges have access to free legal aid if they cannot bear the cost of hiring defense counsel. This is particularly significant given that many individuals in the country live below the poverty line.<br />
<br><br>The free legal assistance provided by the state is meant to ensure access to justice for those who cannot afford private counsel. The defense counsel assigned by the state must meet certain standards, including competence and independence. However, resources for legal aid remain limited, and the quality and availability of defense counsel can vary. There is no specific mention of an agency directly responsible for overseeing legal aid, but the Ministry of Justice is typically involved in coordinating these services. Legal aid is considered a right under the Constitution, but in practice, the effectiveness of the program is hindered by the limited number of lawyers and resources available to the government.<br />
<br><br><br />
When a defendant claims an inability to pay for legal representation, they are asked to declare their financial status, including providing a list of assets. This procedure is similar to what is practiced in some other countries to assess the need for public funding of legal services.<br />
<br><br><br />
'''Non-Governmental Organizations (NGOs) Providing Pro Bono Legal Aid'''<br />
<br>Although the state-sponsored legal aid system exists, it is not always fully effective due to the lack of sufficient resources, both financial and human. As a result, several non-governmental organizations (NGOs) provide pro bono legal aid to the population. These organizations often focus on marginalized groups such as women, children, and rural communities who are most vulnerable to human rights violations and lack access to justice.<br />
<br><br>A few examples of NGOs involved in providing legal aid include:<br />
<li>''The São Tomé and Príncipe Bar Association'' (Ordem dos Advogados de São Tomé e Príncipe), which sometimes coordinates pro bono legal services in cooperation with international NGOs.<br />
<li>''International Development Organizations'', such as the United Nations Development Programme (UNDP), which have supported the development of legal aid mechanisms in the country.<br />
<li>''Local Human Rights Organizations'', which focus on issues such as gender-based violence and child protection, and offer legal services to victims of human rights violations.<br />
<br><br>These NGOs play a crucial role in bridging the gap in legal services, especially for those who cannot access the limited state-sponsored legal aid.<br />
<br><br><br />
'''Number of Lawyers'''<br />
<br>As of recent data, the legal profession in São Tomé and Príncipe is small, with approximately 50 practicing lawyers in the country. This number is low compared to other nations and reflects the challenges in providing adequate legal services. Most lawyers are based in the capital, São Tomé, and work in both the civil and criminal fields, although the demand for legal services often exceeds the available legal workforce.<br />
<br><br><li> ''Prosecutors and Judges'': In 2023, the country had approximately 40 prosecutors and around 70 judges, with a significant concentration of the judiciary in urban areas.<br />
<br><br>The small legal community poses challenges in ensuring that every defendant, particularly in rural areas, has access to competent legal counsel. Many lawyers may also work multiple roles within the legal system, further stretching the resources available to the public.<br />
<br><br>'''Challenges to Access to Justice'''<br />
<br>While the constitutional guarantee for free legal aid exists, its implementation faces challenges, including:<br />
<li><u>Limited Resources:</u> Insufficient government funding for legal aid services and a lack of legal professionals available to provide assistance, especially outside of urban centres.<br />
<li><u>Awareness:</u> There is a lack of widespread public knowledge regarding the availability of free legal assistance, which prevents many citizens from requesting help when they need it.<br />
<li><u>Capacity and Quality of Legal Aid:</u> Even when free legal aid is available, the limited number of experienced and well-trained defence lawyers results in unequal access to justice, particularly for those accused of serious crimes or complex legal matters.<br />
<br><br><br />
'''International Support and Partnerships'''<br />
<br>To address these issues, various international organisations, including the ''United Nations Development Programme (UNDP)'', have supported legal aid efforts in São Tomé and Príncipe, providing both funding and expertise. Additionally, partnerships with regional organizations have facilitated legal reform efforts aimed at enhancing the effectiveness of legal aid and improving the country's overall legal system.<br />
<br><br>In conclusion, while São Tomé and Príncipe has a legal framework that guarantees the right to legal aid, the actual provision of these services is constrained by limited resources, a small legal community, and logistical barriers. The role of NGOs and international partnerships remains critical in expanding access to justice for the country’s most vulnerable populations.<br />
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These groups focus on raising awareness of legal rights, offering mediation services, and advocating for human rights protections.<br />
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==Source of Defendants Rights==<br />
<br />
<li>'''National Sources of Defendant’s rights:'''<br />
<br />
<ul><li><u>The Constitution (1975, as amended)</u>: Guarantees fundamental rights such as liberty, presumption of innocence, and access to counsel.<br />
<li><u>The Penal Code (adapted from Portuguese law)</u>: Outlines criminal offences, penalties, and procedural rights.<br />
<li><u>The Civil Procedure Code</u>: Regulates the functioning of the judiciary and the administration of justice.<br />
<br />
</ul><br><br />
<li>'''International Sources of defendant’s rights:'''<br />
<br>São Tomé and Príncipe is a party to several international treaties, including:<br />
<ul><li><u>The African Charter on Human and Peoples’ Rights<br />
<li>The International Covenant on Civil and Political Rights (ICCPR)<br />
<li>The Convention Against Torture (CAT)</u></ul><br />
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==Rights of the Accused==<br />
<br />
<li> '''Right Against Unlawful Arrests, Searches and Seizures, or Detention:'''<br />
<br><u>The Constitution of São Tomé and Príncipe (art. 36)</u> ensures that no individual may be deprived of their liberty except in cases provided by law and always by decision or under the supervision of the appropriate court. <br />
<br>This provision safeguards individuals from arbitrary arrests and detentions.<br />
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<li>'''Right Not to be Tortured or Ill-Treated:'''<br />
<br>The Constitution explicitly states that the moral and physical integrity of individuals is inviolable. It prohibits subjecting anyone to torture or to cruel, inhuman, or degrading treatment or punishment. <br />
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<li>'''Right to Medical Care:'''<br />
<br>While the Constitution does not explicitly mention the right to medical care, it emphasizes the inviolability of personal integrity, which implies the necessity of access to medical services to maintain one's health and well-being.<br />
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<li>'''Right to be Informed of Charges:'''<br />
<br>The Constitution mandates that criminal procedures must ensure all defense guarantees. This includes informing the accused of the charges against them, allowing for adequate preparation of their defense.<br />
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<li>'''Right to Presumption of Innocence:''' <br />
Every accused person is presumed innocent until proven guilty. The Constitution requires that trials be conducted in the shortest time compatible with defence guarantees, upholding the principle of presumed innocence.<br />
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<li>'''Right Against Self-Incrimination:'''<br />
<br>The Constitution ensures that all evidence obtained through torture, coercion, or offenses to the physical or moral integrity of a person is null and void. This provision protects individuals from being compelled to incriminate themselves. <br />
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<li>'''Right to Counsel and Effective Assistance:'''<br />
<br>The accused has the right to choose defense counsel and to be assisted by them in all acts of the trial. The law specifies instances where such assistance is obligatory, ensuring effective legal representation. <br />
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<li>'''Right to Fair Trial and Due Process:'''<br />
<br>Criminal procedures are designed to assure all defense guarantees, including the right to a fair and public trial. The Constitution emphasizes that no case may be removed from the court whose competence has been established by prior law, ensuring due process. <br />
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<li>'''Right to Bail:'''<br />
<br>While the Constitution does not explicitly mention the right to bail, it provides that no one may be deprived of freedom except in cases provided for by law and always by decision or with the review of the appropriate court. This implies that legal provisions exist regarding detention and possible release conditions. <br />
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<li>'''Right Against Ex Post Facto Prosecution:'''<br />
<br><u>The Constitution (art. 37)</u> stipulates that no one may be sentenced criminally except by virtue of prior law that declares punishable the action or omission. However, penal laws are applied retroactively when their content is more favorable to the accused or sentenced. <br />
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<li>'''Right Against Double Jeopardy:'''<br />
<br>The Constitution does not explicitly mention protection against double jeopardy. However, the general principles of criminal law and procedural guarantees aim to protect individuals from being tried or punished more than once for the same offense.<br />
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<li>'''Right to Language Interpretation:'''<br />
<br>While the Constitution does not explicitly provide a right to language interpretation, the assurance of all defense guarantees in criminal procedures implies that the accused should understand the proceedings. This would necessitate interpretation services when needed. <br />
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==Rights of Counsel==<br />
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<li>'''Right of Access to the Client and Confidential Communication'''<br />
<br>Defense attorneys are entitled to meet with their clients in private, without interference, to prepare a robust defense.<br />
<li>'''Right to Information'''<br />
<br>Lawyers must be granted access to evidence and case files to ensure transparency and adequate preparation.<br />
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==Means of Protecting and Enforcing Rights==<br />
<br />
'''Exclusionary Rule:'''<br />
<br>- Evidence obtained in violation of fundamental rights or freedoms is inadmissible in court.<br />
<br>- This ensures that investigations and prosecutions are conducted within the limits of constitutional guarantees, safeguarding individual liberties.<br />
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'''Nullity of Procedure:'''<br />
<br>The law provides mechanisms to nullify legal proceedings in specific situations:<br />
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<li><u>Definitive Dismissal</u><br />
<br>Occurs when the court concludes that:<br />
<ol><li>The crime has not been committed.<br />
<li>The established facts do not constitute a crime.<br />
<li>Those prosecuted are exempt from criminal liability. </ol><br />
<br><br />
<li><u>Provisional Dismissal</u><br />
<br>Occurs when:<br />
<ol><li>Evidence is insufficient to demonstrate that a crime was committed.<br />
<li> Perpetrators, accomplices, or accessories remain unidentified despite proof of a criminal act.<br />
<li> The defendant’s dementia or severe health condition prevents them from defending themselves until recovery.</ol><br />
<br><br />
<li><u>Impact of Dismissals</u><br />
<ul><li>Final Dismissal: The case is permanently closed and cannot be reopened.<br />
<li>Provisional Dismissal: Proceedings remain open until new information or evidence arises unless the case is prescribed (time-barred).</ul><br />
<br><br />
<li><u>Special Cases</u><br />
<ul><li>If the defendant dies, proceedings may continue regarding the confiscation of goods or money acquired through the criminal act.<br />
<li>In such cases, heirs or legal representatives are held civilly liable unless they renounce ownership of the confiscated assets.</ul><br />
<br><br />
<li><u>Prosecutor's Request for Dismissal</u><br />
<ul><li>If the Public Prosecutor requests dismissal and no private prosecution is established, the court must notify interested parties. These parties have 15 days to pursue the criminal action if they deem it appropriate.<br />
<li>Failure to act within this timeframe leads to the withdrawal of both criminal and civil actions within the criminal process.</ul><br />
<br />
<br><br />
<br><br />
'''Civil Actions:'''<br />
<br> Victims of human rights violations can pursue remedies through civil litigation. Key avenues include:<br />
<ol><li>''Damages or Injunctions'': Plaintiffs may seek compensation or the cessation of human rights violations.<br />
<li>''Appeals to International Bodies'': Domestic decisions can be appealed to the European Court of Human Rights (ECHR).<br />
<li>''Ombudsman Assistance'': The national ombudsman protects and defends citizens' basic rights and freedoms.</ol><br />
<br />
'''Procedures in Civil Litigation'''<br />
<br> The Civil Procedure Code outlines two main procedural types:<br />
<ol><li><u> Ordinary Procedure</u><br />
<ul><li>Applies to cases involving amounts equal to or greater than €20,000, undetermined amounts, or matters not assigned a special procedure.<br />
<li>Structure:<br />
<br>- Written phase (demand, notification, and response).<br />
<br>- Preliminary hearing.<br />
<br>- Oral trial. </ul><br />
<li><u>Abbreviated Procedure</u><br />
<ul><li>Applies to cases involving amounts up to €20,000, matters with no specific procedure, or those governed by special procedures.<br />
<li>Structure:<br />
<br>- Written phase (allegations).<br />
<br>- Oral trial.<br />
<br>- Sentence (appealable if the claim exceeds €1,500). </ul></ol><br />
<br />
'''Special Procedures:'''<br />
<br>Certain cases—such as injunctions, family law matters, or labor disputes—are governed by distinct procedural rules.<br />
<br />
<br />
<br><br />
<br><br />
<br />
==Pre-Trial Procedure==<br />
<br />
In São Tomé and Príncipe, the Constitution and national laws provide several mechanisms to address police misconduct and ensure the protection of individual rights.<br />
<br />
<br><br>'''Constitutional Protections:'''<br />
<li>''' ''Habeas Corpus:'' ''' <u>Article 39 of the Constitution </u> grants citizens the right to habeas corpus in cases of imprisonment or illegal detention resulting from abuse of power. This legal action can be filed before the court, with procedures defined by law. <br />
<li>''' ''Criminal Procedure Guarantees:'' ''' <u>Article 40</u> ensures that criminal procedures uphold all defence guarantees, including the presumption of innocence, the right to a speedy trial, the right to choose and be assisted by defence counsel, and the exclusion of evidence obtained through torture or coercion. <br />
<br />
<br><br>'''Police Oversight and Complaints:'''<br />
<br>The national police and immigration services are under the Ministry of Defense and Public Security, which supervises and controls the military. Despite increased personnel and training, the police have faced challenges related to effectiveness and corruption. Impunity remains a concern, and efforts to reform the Criminal Investigation Police have been hindered by inadequate resources. <br />
<br><br>While the government permits human rights monitors to visit prisons and detention centres, there were no such visits reported in the past year. The Ministry of Justice is responsible for investigating and monitoring prison and detention center conditions. <br />
<br />
<br><br>'''Arrest and Detention Laws:'''<br />
<br>The law requires arrest warrants issued by an authorized official unless a suspect is caught in the act of committing a crime. Detainees must be informed promptly of charges against them and are allowed prompt access to family members and legal representation. A functioning bail system exists; however, severe budgetary constraints have resulted in lengthy pretrial detentions, with some detainees held for more than a year. <br />
<br />
<br />
<br />
<br><br />
<br><br />
<br />
==Court Procedures==<br />
Under the <u>Criminal Procedure Code of São Tomé and Príncipe</u>, a criminal proceeding follows a similar structure to many other legal systems, comprising four distinct stages : investigation, indictment and plea, main trial, and legal remedy. Below is a detailed breakdown of the procedures based on the Criminal Procedure Code and the practices in São Tomé and Príncipe.<br />
<br><br><br />
'''PRE-TRIAL:'''<br />
<br><li>'''Initial Court Appearance'''<br />
<br>Under the Criminal Procedure Code, the pre-trial stage begins with an initial appearance before a judge. This stage allows the judge to review the circumstances of the detention and determine whether it is lawful. The defendant must be informed of the charges against them and their rights, including the right to counsel and to remain silent. The judge must ensure that the defendant understands the charges and their legal rights at the time of the initial court appearance. A hearing is held to decide on the necessity of detention, and the judge has the discretion to order the release of the defendant if the detention is deemed unlawful or unnecessary.<br />
<br><br><li>'''Charging Instrument'''<br />
<br>The indictment is a key legal instrument in criminal proceedings. The prosecution is responsible for preparing the indictment, which formally charges the defendant with specific crimes. In São Tomé and Príncipe, once an indictment is filed by the public prosecutor in the Basic Court, a judge is assigned to the case. The Code stipulates that the indictment should detail the specific facts and legal provisions upon which the charges are based. The defendant has the right to receive a copy of the indictment before the trial, ensuring they are informed of the charges and the evidence against them.<br />
<br><br><li>'''Preliminary Hearing'''<br />
<br>Following the filing of the indictment, a preliminary hearing may be held. This hearing serves to review the charges, determine the admissibility of evidence, and address any motions related to the case, such as requests for bail or dismissal. During the hearing, the court will verify whether the defendant understands the charges and allow them to enter a plea (guilty or not guilty). A second hearing may be scheduled, typically within a certain timeframe, to allow further review of the case or motions.<br />
<br><br><li>'''Pre-Trial Motions'''<br />
<br>The Criminal Procedure Code also allows for various pre-trial motions. These motions can be filed to challenge the evidence, request the exclusion of certain materials, or question the validity of the charges. The judge will rule on such motions before proceeding to the main trial, ensuring that any procedural errors or violations are addressed.<br />
<br><br><li>'''Discovery'''<br />
<br>The discovery process in São Tomé and Príncipe allows the defence to obtain evidence held by the prosecution. Upon the filing of an indictment, the state prosecutor is required to provide the defendant with all evidence that will be presented during the trial. This ensures that the defendant has the opportunity to prepare a defense and contest the evidence presented by the prosecution.<br />
<br />
<br />
<br><br />
<br><br />
<br />
<br><br />
'''TRIAL:'''<br />
<br><br><li>'''Nature of the Trial'''<br />
<br>The main trial in São Tomé and Príncipe is conducted before a judge or a panel of judges. <br />
<br><u>Article 9 of the Criminal Procedure Code</u> stipulates that if the prosecution has sufficient evidence, it will proceed with filing the indictment. The trial itself is public, and the judge or panel of judges hears both the prosecution's and the defense's arguments. In the absence of a jury system, the judge(s) have full responsibility for the trial's outcome. The judge(s) can ask questions during the trial to clarify facts or direct the proceedings.<br />
<br><br><li>'''Defendant's Rights'''<br />
<br>The defendant has several important rights during the trial:<br />
<ul><li>''Right to make statements:'' <br>The defendant has the right to address all facts and evidence that may incriminate or favor them.<br />
<li>''Right to summon witnesses:'' <br>The defendant may request that witnesses testify on their behalf, subject to the court's approval.<br />
<li>''Right to cross-examine:'' <br>The defendant has the right to question witnesses who testify against them and challenge the evidence presented.</ul><br />
<br><br><li>'''Lawyers'''<br />
<br>The role of defence lawyers in São Tomé and Príncipe is critical. They ensure that the defendant’s rights are upheld during the trial and help present arguments in favor of the defendant. <br />
<br><br>However, due to limited resources, there is often a challenge in accessing skilled and experienced defense counsel, especially for those who cannot afford private representation. In some cases, NGOs provide pro bono legal aid to help ensure that justice is accessible to all.<br />
<br><br><li>'''Expert Witnesses'''<br />
<br>According to the <u>Criminal Procedure Code</u>, expert witnesses may be summoned to provide specialised knowledge or clarify evidence. Expert testimony is presented in the form of written reports, and the court may call experts to testify in person. The prosecution or defense can request the assistance of expert witnesses in relevant fields, such as forensic analysis or psychological evaluation.<br />
<br><br><li>'''Judges'''<br />
<br>The conduct of the trial depends on the judge or judges overseeing the case. In criminal cases, there may be a single judge or a panel of judges. A single judge handles less complex cases, while a panel of judges may be used for more serious offenses. The judge is responsible for ensuring a fair trial, ruling on motions, and ultimately delivering a verdict based on the facts presented.<br />
<br><br><li>'''Victims'''<br />
<br>Victims of crimes also have rights during the trial. According to the Criminal Procedure Code, victims can:<br />
<ul><li>''Participate as parties'' in the trial, including the right to make statements and present evidence.<br />
<li> ''Request restitution'' for harm suffered as a result of the crime.<br />
<li> ''Examine witnesses'' and present their case to the court.</ul><br />
<br />
<br><br />
<br><br />
'''SENTENCING'''<br />
<br><br>After the trial concludes, the judge or panel of judges will issue a sentence. <u>The Criminal Procedure Code</u> outlines the guidelines for sentencing, ensuring that the punishment is proportionate to the crime. However, there have been concerns about the quality of judgments, as reported in some reports, with calls for better training for judges and more consistent application of sentencing guidelines.<br />
<br><br />
<br><br />
'''APPEALS'''<br />
<br><li>'''Right to Appeal'''<br />
<br>Both the defence and prosecution have the right to appeal a decision to a higher court. <u>Article 368 of the Criminal Procedure Code</u> allows for an appeal following the announcement of a judgment, enabling the parties to challenge the verdict or the sentence. Appeals can be based on procedural errors, violations of rights, or misapplication of the law.<br />
<br><br><li>'''Other Grounds for Appeal'''<br />
<br>Appeals can be filed against a pre-trial judge’s decision (such as a ruling on detention) or a ruling concerning punishment. The Court of Appeals reviews these decisions, ensuring that there are no legal or procedural flaws that would undermine the fairness of the trial.<br />
<br />
<br />
<br><br />
<br />
==Rights in Prison==<br />
<br />
<br><li>'''Death Penalty'''<br />
<br>São Tomé and Príncipe abolished the death penalty for all crimes in 1990. On January 10, 2017, the country ratified the <u>Second Optional Protocol to the International Covenant on Civil and Political Rights,</u> reinforcing its commitment to the abolition of capital punishment. <br />
<br />
According to Amnesty International São Tomé and Príncipe is classified as abolitionist for all crimes. <br />
<br />
<br><br><li>'''Detention Conditions'''<br />
The nation's sole prison has faced challenges, including overcrowding and deteriorating infrastructure. Reports indicate that the facility operated at 20% over its capacity, leading to harsh conditions for inmates. <br />
<br />
<br><br>In March 2022, efforts to address these issues included the inauguration of a new prison wing constructed with support from the United Nations. <br />
<br />
<br><br><li>'''Torture'''<br />
<br>While specific information regarding the ratification of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by São Tomé and Príncipe is not readily available, the U.S. Department of State's 2022 Country Report on Human Rights Practices did not highlight torture as a prevalent issue in the country. <br />
<br />
<br><br><li>'''Corporal Punishment'''<br />
<br>There is limited publicly available information detailing the current legal stance on corporal punishment within São Tomé and Príncipe's prison system. Further research or official sources would be required to provide an accurate account of any existing policies or practices.<br />
<br />
<br><br><li>'''Medical Care'''<br />
<br>Medical care within the prison system has been a concern, with reports highlighting a lack of basic medical supplies and accommodations for prisoners with disabilities. In emergencies, prisoners are typically transferred to the national hospital for treatment. <br />
<br />
<br><br>'''Juveniles'''<br />
<br>Specific provisions regarding the treatment and detention of juveniles in São Tomé and Príncipe are not extensively documented in the available sources. Ensuring the protection of minors within the justice system remains a critical aspect of upholding human rights standards.<br />
<br><br>In summary, São Tomé and Príncipe has made significant strides in human rights, notably through the abolition of the death penalty. <br>However, challenges persist in the prison system, particularly concerning overcrowding, infrastructure, and medical care. Addressing these issues is essential to align with international human rights norms and ensure the well-being of all detainees.<br />
<br />
==Resources==<br />
<li>Britannica. (n.d.). São Tomé. Retrieved from https://www.britannica.com/place/Sao-Tome<br />
<li>Constitute Project. (2003). São Tomé and Príncipe’s Constitution of 2003. Retrieved from https://www.constituteproject.org/constitution/Sao_Tome_and_Principe_2003<br />
<li>United Nations Sustainable Development Group. (2022). UNSDCF São Tomé and Príncipe 2023–2027. Retrieved from https://unsdg.un.org/sites/default/files/2022-11/UNSDCF_Sao%20Tome%20and%20Principe_2023-2027.pdf<br />
<li>FAOLEX. (n.d.). Law No. 8/2001 (Framework Law on the Environment). Retrieved from https://faolex.fao.org/docs/pdf/sao117335E.pdf<br />
<li>International Center for Not-for-Profit Law (ICNL). (n.d.). São Tomé and Príncipe: Civic Freedom Monitor. Retrieved from https://www.icnl.org/research/library/sao-tome-and-principe_st001pt/<br />
<li>NYU Globalex. (n.d.). Research Guide: São Tomé and Príncipe. Retrieved from https://www.nyulawglobal.org/globalex/sao_tome_principe.html<br />
<li>World Coalition Against the Death Penalty. (n.d.). São Tomé and Príncipe. Retrieved from https://worldcoalition.org/pays/sao-tome-and-principe/<br />
<li>Amnesty International. (n.d.). São Tomé and Príncipe – Africa. Retrieved from https://www.amnesty.org/en/location/africa/sao-tome-and-principe/<br />
<li>U.S. Department of State. (2022). 2022 Country Reports on Human Rights Practices: São Tomé and Príncipe. Retrieved from https://www.state.gov/reports/2022-country-reports-on-human-rights-practices/sao-tome-and-principe/<br />
<li>Freedom House. (2024). São Tomé and Príncipe: Freedom in the World 2024. Retrieved from https://freedomhouse.org/country/sao-tome-and-principe/freedom-world/2024<br />
<li>Borgen Magazine. (n.d.). Human Rights in São Tomé and Príncipe. Retrieved from https://www.borgenmagazine.com/human-rights-in-sao-tome-and-principe/</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=S%C3%A3o_Tom%C3%A9_and_Pr%C3%ADncipe&diff=381644São Tomé and Príncipe2025-05-06T14:52:00Z<p>IBJadmin: /* Rights in Prison */</p>
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* The Constitution of the Democratic Republic of São Tomé and Príncipe <ref>https://www.constituteproject.org/constitution/Sao_Tome_and_Principe_2003?utm_source=chatgpt.com<br />
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* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
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<br />
==Background==<br />
<br />
São Tomé and Príncipe is a small island nation located in the Gulf of Guinea, off the western coast of Central Africa. It gained independence from Portugal on July 12, 1975, and is Africa’s second-smallest country by both area and population. Its capital, São Tomé, is situated on the main island of the same name, which, along with Príncipe, constitutes the archipelago. <br />
<br><br>The country has a population of approximately 223,000 people (2023 estimate), with most inhabitants being of African descent, descended from various ethnic groups including the Forros, Angolares, and descendants of freed slaves. Portuguese is the official language, and most people speak Forro (a creole dialect) as a lingua franca.<br />
<br><br>São Tomé and Príncipe has a mixed economy, heavily reliant on agriculture (notably cocoa production) and increasingly on tourism. Political stability has improved significantly in recent decades, but the country still faces economic challenges, including poverty and reliance on external aid.<br />
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==The Legal system==<br />
São Tomé and Príncipe has a <u>civil law system</u>, rooted in Portuguese legal traditions. The country's legal framework is based on the '''1975 Constitution''', last amended in 2003, which establishes a multi-party democratic system with three branches of government:<br />
<ol><li>''Executive'': Led by the President and the Prime Minister.<br />
<li>''Legislative'': A unicameral National Assembly.<br />
<li> ''Judiciary'': Includes the Supreme Court of Justice, regional courts, and specialized courts.<br />
<br><br>The judiciary operates independently and has jurisdiction over constitutional matters, criminal justice, and civil disputes.</ol><br />
<br />
==Legal Aid==<br />
<br><br>'''State-Sponsored Legal Aid in São Tomé and Príncipe'''<br />
<br><u>Article 44 of the Constitution</u> of São Tomé and Príncipe guarantees the right to legal assistance for all citizens who cannot afford to hire a lawyer. This provision ensures that individuals facing criminal charges have access to free legal aid if they cannot bear the cost of hiring defense counsel. This is particularly significant given that many individuals in the country live below the poverty line.<br />
<br><br>The free legal assistance provided by the state is meant to ensure access to justice for those who cannot afford private counsel. The defense counsel assigned by the state must meet certain standards, including competence and independence. However, resources for legal aid remain limited, and the quality and availability of defense counsel can vary. There is no specific mention of an agency directly responsible for overseeing legal aid, but the Ministry of Justice is typically involved in coordinating these services. Legal aid is considered a right under the Constitution, but in practice, the effectiveness of the program is hindered by the limited number of lawyers and resources available to the government.<br />
<br><br><br />
When a defendant claims an inability to pay for legal representation, they are asked to declare their financial status, including providing a list of assets. This procedure is similar to what is practiced in some other countries to assess the need for public funding of legal services.<br />
<br><br><br />
'''Non-Governmental Organizations (NGOs) Providing Pro Bono Legal Aid'''<br />
<br>Although the state-sponsored legal aid system exists, it is not always fully effective due to the lack of sufficient resources, both financial and human. As a result, several non-governmental organizations (NGOs) provide pro bono legal aid to the population. These organizations often focus on marginalized groups such as women, children, and rural communities who are most vulnerable to human rights violations and lack access to justice.<br />
<br><br>A few examples of NGOs involved in providing legal aid include:<br />
<li>''The São Tomé and Príncipe Bar Association'' (Ordem dos Advogados de São Tomé e Príncipe), which sometimes coordinates pro bono legal services in cooperation with international NGOs.<br />
<li>''International Development Organizations'', such as the United Nations Development Programme (UNDP), which have supported the development of legal aid mechanisms in the country.<br />
<li>''Local Human Rights Organizations'', which focus on issues such as gender-based violence and child protection, and offer legal services to victims of human rights violations.<br />
<br><br>These NGOs play a crucial role in bridging the gap in legal services, especially for those who cannot access the limited state-sponsored legal aid.<br />
<br><br><br />
'''Number of Lawyers'''<br />
<br>As of recent data, the legal profession in São Tomé and Príncipe is small, with approximately 50 practicing lawyers in the country. This number is low compared to other nations and reflects the challenges in providing adequate legal services. Most lawyers are based in the capital, São Tomé, and work in both the civil and criminal fields, although the demand for legal services often exceeds the available legal workforce.<br />
<br><br><li> ''Prosecutors and Judges'': In 2023, the country had approximately 40 prosecutors and around 70 judges, with a significant concentration of the judiciary in urban areas.<br />
<br><br>The small legal community poses challenges in ensuring that every defendant, particularly in rural areas, has access to competent legal counsel. Many lawyers may also work multiple roles within the legal system, further stretching the resources available to the public.<br />
<br><br>'''Challenges to Access to Justice'''<br />
<br>While the constitutional guarantee for free legal aid exists, its implementation faces challenges, including:<br />
<li><u>Limited Resources:</u> Insufficient government funding for legal aid services and a lack of legal professionals available to provide assistance, especially outside of urban centres.<br />
<li><u>Awareness:</u> There is a lack of widespread public knowledge regarding the availability of free legal assistance, which prevents many citizens from requesting help when they need it.<br />
<li><u>Capacity and Quality of Legal Aid:</u> Even when free legal aid is available, the limited number of experienced and well-trained defence lawyers results in unequal access to justice, particularly for those accused of serious crimes or complex legal matters.<br />
<br><br><br />
'''International Support and Partnerships'''<br />
<br>To address these issues, various international organisations, including the ''United Nations Development Programme (UNDP)'', have supported legal aid efforts in São Tomé and Príncipe, providing both funding and expertise. Additionally, partnerships with regional organizations have facilitated legal reform efforts aimed at enhancing the effectiveness of legal aid and improving the country's overall legal system.<br />
<br><br>In conclusion, while São Tomé and Príncipe has a legal framework that guarantees the right to legal aid, the actual provision of these services is constrained by limited resources, a small legal community, and logistical barriers. The role of NGOs and international partnerships remains critical in expanding access to justice for the country’s most vulnerable populations.<br />
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These groups focus on raising awareness of legal rights, offering mediation services, and advocating for human rights protections.<br />
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==Source of Defendants Rights==<br />
<br />
<li>'''National Sources of Defendant’s rights:'''<br />
<br />
<ul><li><u>The Constitution (1975, as amended)</u>: Guarantees fundamental rights such as liberty, presumption of innocence, and access to counsel.<br />
<li><u>The Penal Code (adapted from Portuguese law)</u>: Outlines criminal offences, penalties, and procedural rights.<br />
<li><u>The Civil Procedure Code</u>: Regulates the functioning of the judiciary and the administration of justice.<br />
<br />
</ul><br><br />
<li>'''International Sources of defendant’s rights:'''<br />
<br>São Tomé and Príncipe is a party to several international treaties, including:<br />
<ul><li><u>The African Charter on Human and Peoples’ Rights<br />
<li>The International Covenant on Civil and Political Rights (ICCPR)<br />
<li>The Convention Against Torture (CAT)</u></ul><br />
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==Rights of the Accused==<br />
<br />
<li> '''Right Against Unlawful Arrests, Searches and Seizures, or Detention:'''<br />
<br><u>The Constitution of São Tomé and Príncipe (art. 36)</u> ensures that no individual may be deprived of their liberty except in cases provided by law and always by decision or under the supervision of the appropriate court. <br />
<br>This provision safeguards individuals from arbitrary arrests and detentions.<br />
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<li>'''Right Not to be Tortured or Ill-Treated:'''<br />
<br>The Constitution explicitly states that the moral and physical integrity of individuals is inviolable. It prohibits subjecting anyone to torture or to cruel, inhuman, or degrading treatment or punishment. <br />
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<li>'''Right to Medical Care:'''<br />
<br>While the Constitution does not explicitly mention the right to medical care, it emphasizes the inviolability of personal integrity, which implies the necessity of access to medical services to maintain one's health and well-being.<br />
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<li>'''Right to be Informed of Charges:'''<br />
<br>The Constitution mandates that criminal procedures must ensure all defense guarantees. This includes informing the accused of the charges against them, allowing for adequate preparation of their defense.<br />
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<br><br />
<li>'''Right to Presumption of Innocence:''' <br />
Every accused person is presumed innocent until proven guilty. The Constitution requires that trials be conducted in the shortest time compatible with defence guarantees, upholding the principle of presumed innocence.<br />
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<li>'''Right Against Self-Incrimination:'''<br />
<br>The Constitution ensures that all evidence obtained through torture, coercion, or offenses to the physical or moral integrity of a person is null and void. This provision protects individuals from being compelled to incriminate themselves. <br />
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<li>'''Right to Counsel and Effective Assistance:'''<br />
<br>The accused has the right to choose defense counsel and to be assisted by them in all acts of the trial. The law specifies instances where such assistance is obligatory, ensuring effective legal representation. <br />
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<li>'''Right to Fair Trial and Due Process:'''<br />
<br>Criminal procedures are designed to assure all defense guarantees, including the right to a fair and public trial. The Constitution emphasizes that no case may be removed from the court whose competence has been established by prior law, ensuring due process. <br />
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<li>'''Right to Bail:'''<br />
<br>While the Constitution does not explicitly mention the right to bail, it provides that no one may be deprived of freedom except in cases provided for by law and always by decision or with the review of the appropriate court. This implies that legal provisions exist regarding detention and possible release conditions. <br />
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<li>'''Right Against Ex Post Facto Prosecution:'''<br />
<br><u>The Constitution (art. 37)</u> stipulates that no one may be sentenced criminally except by virtue of prior law that declares punishable the action or omission. However, penal laws are applied retroactively when their content is more favorable to the accused or sentenced. <br />
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<br />
<li>'''Right Against Double Jeopardy:'''<br />
<br>The Constitution does not explicitly mention protection against double jeopardy. However, the general principles of criminal law and procedural guarantees aim to protect individuals from being tried or punished more than once for the same offense.<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Language Interpretation:'''<br />
<br>While the Constitution does not explicitly provide a right to language interpretation, the assurance of all defense guarantees in criminal procedures implies that the accused should understand the proceedings. This would necessitate interpretation services when needed. <br />
<br />
<br><br />
<br><br />
<br />
==Rights of Counsel==<br />
<br />
<li>'''Right of Access to the Client and Confidential Communication'''<br />
<br>Defense attorneys are entitled to meet with their clients in private, without interference, to prepare a robust defense.<br />
<li>'''Right to Information'''<br />
<br>Lawyers must be granted access to evidence and case files to ensure transparency and adequate preparation.<br />
<br />
<br><br />
<br />
==Means of Protecting and Enforcing Rights==<br />
<br />
'''Exclusionary Rule:'''<br />
<br>- Evidence obtained in violation of fundamental rights or freedoms is inadmissible in court.<br />
<br>- This ensures that investigations and prosecutions are conducted within the limits of constitutional guarantees, safeguarding individual liberties.<br />
<br />
'''Nullity of Procedure:'''<br />
<br>The law provides mechanisms to nullify legal proceedings in specific situations:<br />
<br />
<li><u>Definitive Dismissal</u><br />
<br>Occurs when the court concludes that:<br />
<ol><li>The crime has not been committed.<br />
<li>The established facts do not constitute a crime.<br />
<li>Those prosecuted are exempt from criminal liability. </ol><br />
<br><br />
<li><u>Provisional Dismissal</u><br />
<br>Occurs when:<br />
<ol><li>Evidence is insufficient to demonstrate that a crime was committed.<br />
<li> Perpetrators, accomplices, or accessories remain unidentified despite proof of a criminal act.<br />
<li> The defendant’s dementia or severe health condition prevents them from defending themselves until recovery.</ol><br />
<br><br />
<li><u>Impact of Dismissals</u><br />
<ul><li>Final Dismissal: The case is permanently closed and cannot be reopened.<br />
<li>Provisional Dismissal: Proceedings remain open until new information or evidence arises unless the case is prescribed (time-barred).</ul><br />
<br><br />
<li><u>Special Cases</u><br />
<ul><li>If the defendant dies, proceedings may continue regarding the confiscation of goods or money acquired through the criminal act.<br />
<li>In such cases, heirs or legal representatives are held civilly liable unless they renounce ownership of the confiscated assets.</ul><br />
<br><br />
<li><u>Prosecutor's Request for Dismissal</u><br />
<ul><li>If the Public Prosecutor requests dismissal and no private prosecution is established, the court must notify interested parties. These parties have 15 days to pursue the criminal action if they deem it appropriate.<br />
<li>Failure to act within this timeframe leads to the withdrawal of both criminal and civil actions within the criminal process.</ul><br />
<br />
<br><br />
<br><br />
'''Civil Actions:'''<br />
<br> Victims of human rights violations can pursue remedies through civil litigation. Key avenues include:<br />
<ol><li>''Damages or Injunctions'': Plaintiffs may seek compensation or the cessation of human rights violations.<br />
<li>''Appeals to International Bodies'': Domestic decisions can be appealed to the European Court of Human Rights (ECHR).<br />
<li>''Ombudsman Assistance'': The national ombudsman protects and defends citizens' basic rights and freedoms.</ol><br />
<br />
'''Procedures in Civil Litigation'''<br />
<br> The Civil Procedure Code outlines two main procedural types:<br />
<ol><li><u> Ordinary Procedure</u><br />
<ul><li>Applies to cases involving amounts equal to or greater than €20,000, undetermined amounts, or matters not assigned a special procedure.<br />
<li>Structure:<br />
<br>- Written phase (demand, notification, and response).<br />
<br>- Preliminary hearing.<br />
<br>- Oral trial. </ul><br />
<li><u>Abbreviated Procedure</u><br />
<ul><li>Applies to cases involving amounts up to €20,000, matters with no specific procedure, or those governed by special procedures.<br />
<li>Structure:<br />
<br>- Written phase (allegations).<br />
<br>- Oral trial.<br />
<br>- Sentence (appealable if the claim exceeds €1,500). </ul></ol><br />
<br />
'''Special Procedures:'''<br />
<br>Certain cases—such as injunctions, family law matters, or labor disputes—are governed by distinct procedural rules.<br />
<br />
<br />
<br><br />
<br><br />
<br />
==Pre-Trial Procedure==<br />
<br />
In São Tomé and Príncipe, the Constitution and national laws provide several mechanisms to address police misconduct and ensure the protection of individual rights.<br />
<br />
<br><br>'''Constitutional Protections:'''<br />
<li>''' ''Habeas Corpus:'' ''' <u>Article 39 of the Constitution </u> grants citizens the right to habeas corpus in cases of imprisonment or illegal detention resulting from abuse of power. This legal action can be filed before the court, with procedures defined by law. <br />
<li>''' ''Criminal Procedure Guarantees:'' ''' <u>Article 40</u> ensures that criminal procedures uphold all defence guarantees, including the presumption of innocence, the right to a speedy trial, the right to choose and be assisted by defence counsel, and the exclusion of evidence obtained through torture or coercion. <br />
<br />
<br><br>'''Police Oversight and Complaints:'''<br />
<br>The national police and immigration services are under the Ministry of Defense and Public Security, which supervises and controls the military. Despite increased personnel and training, the police have faced challenges related to effectiveness and corruption. Impunity remains a concern, and efforts to reform the Criminal Investigation Police have been hindered by inadequate resources. <br />
<br><br>While the government permits human rights monitors to visit prisons and detention centres, there were no such visits reported in the past year. The Ministry of Justice is responsible for investigating and monitoring prison and detention center conditions. <br />
<br />
<br><br>'''Arrest and Detention Laws:'''<br />
<br>The law requires arrest warrants issued by an authorized official unless a suspect is caught in the act of committing a crime. Detainees must be informed promptly of charges against them and are allowed prompt access to family members and legal representation. A functioning bail system exists; however, severe budgetary constraints have resulted in lengthy pretrial detentions, with some detainees held for more than a year. <br />
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==Court Procedures==<br />
Under the <u>Criminal Procedure Code of São Tomé and Príncipe</u>, a criminal proceeding follows a similar structure to many other legal systems, comprising four distinct stages : investigation, indictment and plea, main trial, and legal remedy. Below is a detailed breakdown of the procedures based on the Criminal Procedure Code and the practices in São Tomé and Príncipe.<br />
<br><br><br />
'''PRE-TRIAL:'''<br />
<br><li>'''Initial Court Appearance'''<br />
<br>Under the Criminal Procedure Code, the pre-trial stage begins with an initial appearance before a judge. This stage allows the judge to review the circumstances of the detention and determine whether it is lawful. The defendant must be informed of the charges against them and their rights, including the right to counsel and to remain silent. The judge must ensure that the defendant understands the charges and their legal rights at the time of the initial court appearance. A hearing is held to decide on the necessity of detention, and the judge has the discretion to order the release of the defendant if the detention is deemed unlawful or unnecessary.<br />
<br><br><li>'''Charging Instrument'''<br />
<br>The indictment is a key legal instrument in criminal proceedings. The prosecution is responsible for preparing the indictment, which formally charges the defendant with specific crimes. In São Tomé and Príncipe, once an indictment is filed by the public prosecutor in the Basic Court, a judge is assigned to the case. The Code stipulates that the indictment should detail the specific facts and legal provisions upon which the charges are based. The defendant has the right to receive a copy of the indictment before the trial, ensuring they are informed of the charges and the evidence against them.<br />
<br><br><li>'''Preliminary Hearing'''<br />
<br>Following the filing of the indictment, a preliminary hearing may be held. This hearing serves to review the charges, determine the admissibility of evidence, and address any motions related to the case, such as requests for bail or dismissal. During the hearing, the court will verify whether the defendant understands the charges and allow them to enter a plea (guilty or not guilty). A second hearing may be scheduled, typically within a certain timeframe, to allow further review of the case or motions.<br />
<br><br><li>'''Pre-Trial Motions'''<br />
<br>The Criminal Procedure Code also allows for various pre-trial motions. These motions can be filed to challenge the evidence, request the exclusion of certain materials, or question the validity of the charges. The judge will rule on such motions before proceeding to the main trial, ensuring that any procedural errors or violations are addressed.<br />
<br><br><li>'''Discovery'''<br />
<br>The discovery process in São Tomé and Príncipe allows the defence to obtain evidence held by the prosecution. Upon the filing of an indictment, the state prosecutor is required to provide the defendant with all evidence that will be presented during the trial. This ensures that the defendant has the opportunity to prepare a defense and contest the evidence presented by the prosecution.<br />
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<br><br />
'''TRIAL:'''<br />
<br><br><li>'''Nature of the Trial'''<br />
<br>The main trial in São Tomé and Príncipe is conducted before a judge or a panel of judges. <br />
<br><u>Article 9 of the Criminal Procedure Code</u> stipulates that if the prosecution has sufficient evidence, it will proceed with filing the indictment. The trial itself is public, and the judge or panel of judges hears both the prosecution's and the defense's arguments. In the absence of a jury system, the judge(s) have full responsibility for the trial's outcome. The judge(s) can ask questions during the trial to clarify facts or direct the proceedings.<br />
<br><br><li>'''Defendant's Rights'''<br />
<br>The defendant has several important rights during the trial:<br />
<ul><li>''Right to make statements:'' <br>The defendant has the right to address all facts and evidence that may incriminate or favor them.<br />
<li>''Right to summon witnesses:'' <br>The defendant may request that witnesses testify on their behalf, subject to the court's approval.<br />
<li>''Right to cross-examine:'' <br>The defendant has the right to question witnesses who testify against them and challenge the evidence presented.</ul><br />
<br><br><li>'''Lawyers'''<br />
<br>The role of defence lawyers in São Tomé and Príncipe is critical. They ensure that the defendant’s rights are upheld during the trial and help present arguments in favor of the defendant. <br />
<br><br>However, due to limited resources, there is often a challenge in accessing skilled and experienced defense counsel, especially for those who cannot afford private representation. In some cases, NGOs provide pro bono legal aid to help ensure that justice is accessible to all.<br />
<br><br><li>'''Expert Witnesses'''<br />
<br>According to the <u>Criminal Procedure Code</u>, expert witnesses may be summoned to provide specialised knowledge or clarify evidence. Expert testimony is presented in the form of written reports, and the court may call experts to testify in person. The prosecution or defense can request the assistance of expert witnesses in relevant fields, such as forensic analysis or psychological evaluation.<br />
<br><br><li>'''Judges'''<br />
<br>The conduct of the trial depends on the judge or judges overseeing the case. In criminal cases, there may be a single judge or a panel of judges. A single judge handles less complex cases, while a panel of judges may be used for more serious offenses. The judge is responsible for ensuring a fair trial, ruling on motions, and ultimately delivering a verdict based on the facts presented.<br />
<br><br><li>'''Victims'''<br />
<br>Victims of crimes also have rights during the trial. According to the Criminal Procedure Code, victims can:<br />
<ul><li>''Participate as parties'' in the trial, including the right to make statements and present evidence.<br />
<li> ''Request restitution'' for harm suffered as a result of the crime.<br />
<li> ''Examine witnesses'' and present their case to the court.</ul><br />
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<br><br />
<br><br />
'''SENTENCING'''<br />
<br><br>After the trial concludes, the judge or panel of judges will issue a sentence. <u>The Criminal Procedure Code</u> outlines the guidelines for sentencing, ensuring that the punishment is proportionate to the crime. However, there have been concerns about the quality of judgments, as reported in some reports, with calls for better training for judges and more consistent application of sentencing guidelines.<br />
<br><br />
<br><br />
'''APPEALS'''<br />
<br><li>'''Right to Appeal'''<br />
<br>Both the defence and prosecution have the right to appeal a decision to a higher court. <u>Article 368 of the Criminal Procedure Code</u> allows for an appeal following the announcement of a judgment, enabling the parties to challenge the verdict or the sentence. Appeals can be based on procedural errors, violations of rights, or misapplication of the law.<br />
<br><br><li>'''Other Grounds for Appeal'''<br />
<br>Appeals can be filed against a pre-trial judge’s decision (such as a ruling on detention) or a ruling concerning punishment. The Court of Appeals reviews these decisions, ensuring that there are no legal or procedural flaws that would undermine the fairness of the trial.<br />
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<br />
<br><br />
<br />
==Rights in Prison==<br />
<br />
<br><li>'''Death Penalty'''<br />
<br>São Tomé and Príncipe abolished the death penalty for all crimes in 1990. On January 10, 2017, the country ratified the <u>Second Optional Protocol to the International Covenant on Civil and Political Rights,</u> reinforcing its commitment to the abolition of capital punishment. <br />
<br />
According to Amnesty International São Tomé and Príncipe is classified as abolitionist for all crimes. <br />
<br />
<br><br><li>'''Detention Conditions'''<br />
The nation's sole prison has faced challenges, including overcrowding and deteriorating infrastructure. Reports indicate that the facility operated at 20% over its capacity, leading to harsh conditions for inmates. <br />
<br />
<br><br>In March 2022, efforts to address these issues included the inauguration of a new prison wing constructed with support from the United Nations. <br />
<br />
<br><br><li>'''Torture'''<br />
<br>While specific information regarding the ratification of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by São Tomé and Príncipe is not readily available, the U.S. Department of State's 2022 Country Report on Human Rights Practices did not highlight torture as a prevalent issue in the country. <br />
<br />
<br><br><li>'''Corporal Punishment'''<br />
<br>There is limited publicly available information detailing the current legal stance on corporal punishment within São Tomé and Príncipe's prison system. Further research or official sources would be required to provide an accurate account of any existing policies or practices.<br />
<br />
<br><br><li>'''Medical Care'''<br />
<br>Medical care within the prison system has been a concern, with reports highlighting a lack of basic medical supplies and accommodations for prisoners with disabilities. In emergencies, prisoners are typically transferred to the national hospital for treatment. <br />
<br />
<br><br>'''Juveniles'''<br />
<br>Specific provisions regarding the treatment and detention of juveniles in São Tomé and Príncipe are not extensively documented in the available sources. Ensuring the protection of minors within the justice system remains a critical aspect of upholding human rights standards.<br />
<br><br>In summary, São Tomé and Príncipe has made significant strides in human rights, notably through the abolition of the death penalty. <br>However, challenges persist in the prison system, particularly concerning overcrowding, infrastructure, and medical care. Addressing these issues is essential to align with international human rights norms and ensure the well-being of all detainees.<br />
<br />
==Resources==</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=S%C3%A3o_Tom%C3%A9_and_Pr%C3%ADncipe&diff=381643São Tomé and Príncipe2025-05-06T14:47:21Z<p>IBJadmin: /* Court Procedures */</p>
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⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>.<br />
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* The Constitution of the Democratic Republic of São Tomé and Príncipe <ref>https://www.constituteproject.org/constitution/Sao_Tome_and_Principe_2003?utm_source=chatgpt.com<br />
</ref><br />
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* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
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<br />
==Background==<br />
<br />
São Tomé and Príncipe is a small island nation located in the Gulf of Guinea, off the western coast of Central Africa. It gained independence from Portugal on July 12, 1975, and is Africa’s second-smallest country by both area and population. Its capital, São Tomé, is situated on the main island of the same name, which, along with Príncipe, constitutes the archipelago. <br />
<br><br>The country has a population of approximately 223,000 people (2023 estimate), with most inhabitants being of African descent, descended from various ethnic groups including the Forros, Angolares, and descendants of freed slaves. Portuguese is the official language, and most people speak Forro (a creole dialect) as a lingua franca.<br />
<br><br>São Tomé and Príncipe has a mixed economy, heavily reliant on agriculture (notably cocoa production) and increasingly on tourism. Political stability has improved significantly in recent decades, but the country still faces economic challenges, including poverty and reliance on external aid.<br />
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==The Legal system==<br />
São Tomé and Príncipe has a <u>civil law system</u>, rooted in Portuguese legal traditions. The country's legal framework is based on the '''1975 Constitution''', last amended in 2003, which establishes a multi-party democratic system with three branches of government:<br />
<ol><li>''Executive'': Led by the President and the Prime Minister.<br />
<li>''Legislative'': A unicameral National Assembly.<br />
<li> ''Judiciary'': Includes the Supreme Court of Justice, regional courts, and specialized courts.<br />
<br><br>The judiciary operates independently and has jurisdiction over constitutional matters, criminal justice, and civil disputes.</ol><br />
<br />
==Legal Aid==<br />
<br><br>'''State-Sponsored Legal Aid in São Tomé and Príncipe'''<br />
<br><u>Article 44 of the Constitution</u> of São Tomé and Príncipe guarantees the right to legal assistance for all citizens who cannot afford to hire a lawyer. This provision ensures that individuals facing criminal charges have access to free legal aid if they cannot bear the cost of hiring defense counsel. This is particularly significant given that many individuals in the country live below the poverty line.<br />
<br><br>The free legal assistance provided by the state is meant to ensure access to justice for those who cannot afford private counsel. The defense counsel assigned by the state must meet certain standards, including competence and independence. However, resources for legal aid remain limited, and the quality and availability of defense counsel can vary. There is no specific mention of an agency directly responsible for overseeing legal aid, but the Ministry of Justice is typically involved in coordinating these services. Legal aid is considered a right under the Constitution, but in practice, the effectiveness of the program is hindered by the limited number of lawyers and resources available to the government.<br />
<br><br><br />
When a defendant claims an inability to pay for legal representation, they are asked to declare their financial status, including providing a list of assets. This procedure is similar to what is practiced in some other countries to assess the need for public funding of legal services.<br />
<br><br><br />
'''Non-Governmental Organizations (NGOs) Providing Pro Bono Legal Aid'''<br />
<br>Although the state-sponsored legal aid system exists, it is not always fully effective due to the lack of sufficient resources, both financial and human. As a result, several non-governmental organizations (NGOs) provide pro bono legal aid to the population. These organizations often focus on marginalized groups such as women, children, and rural communities who are most vulnerable to human rights violations and lack access to justice.<br />
<br><br>A few examples of NGOs involved in providing legal aid include:<br />
<li>''The São Tomé and Príncipe Bar Association'' (Ordem dos Advogados de São Tomé e Príncipe), which sometimes coordinates pro bono legal services in cooperation with international NGOs.<br />
<li>''International Development Organizations'', such as the United Nations Development Programme (UNDP), which have supported the development of legal aid mechanisms in the country.<br />
<li>''Local Human Rights Organizations'', which focus on issues such as gender-based violence and child protection, and offer legal services to victims of human rights violations.<br />
<br><br>These NGOs play a crucial role in bridging the gap in legal services, especially for those who cannot access the limited state-sponsored legal aid.<br />
<br><br><br />
'''Number of Lawyers'''<br />
<br>As of recent data, the legal profession in São Tomé and Príncipe is small, with approximately 50 practicing lawyers in the country. This number is low compared to other nations and reflects the challenges in providing adequate legal services. Most lawyers are based in the capital, São Tomé, and work in both the civil and criminal fields, although the demand for legal services often exceeds the available legal workforce.<br />
<br><br><li> ''Prosecutors and Judges'': In 2023, the country had approximately 40 prosecutors and around 70 judges, with a significant concentration of the judiciary in urban areas.<br />
<br><br>The small legal community poses challenges in ensuring that every defendant, particularly in rural areas, has access to competent legal counsel. Many lawyers may also work multiple roles within the legal system, further stretching the resources available to the public.<br />
<br><br>'''Challenges to Access to Justice'''<br />
<br>While the constitutional guarantee for free legal aid exists, its implementation faces challenges, including:<br />
<li><u>Limited Resources:</u> Insufficient government funding for legal aid services and a lack of legal professionals available to provide assistance, especially outside of urban centres.<br />
<li><u>Awareness:</u> There is a lack of widespread public knowledge regarding the availability of free legal assistance, which prevents many citizens from requesting help when they need it.<br />
<li><u>Capacity and Quality of Legal Aid:</u> Even when free legal aid is available, the limited number of experienced and well-trained defence lawyers results in unequal access to justice, particularly for those accused of serious crimes or complex legal matters.<br />
<br><br><br />
'''International Support and Partnerships'''<br />
<br>To address these issues, various international organisations, including the ''United Nations Development Programme (UNDP)'', have supported legal aid efforts in São Tomé and Príncipe, providing both funding and expertise. Additionally, partnerships with regional organizations have facilitated legal reform efforts aimed at enhancing the effectiveness of legal aid and improving the country's overall legal system.<br />
<br><br>In conclusion, while São Tomé and Príncipe has a legal framework that guarantees the right to legal aid, the actual provision of these services is constrained by limited resources, a small legal community, and logistical barriers. The role of NGOs and international partnerships remains critical in expanding access to justice for the country’s most vulnerable populations.<br />
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These groups focus on raising awareness of legal rights, offering mediation services, and advocating for human rights protections.<br />
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==Source of Defendants Rights==<br />
<br />
<li>'''National Sources of Defendant’s rights:'''<br />
<br />
<ul><li><u>The Constitution (1975, as amended)</u>: Guarantees fundamental rights such as liberty, presumption of innocence, and access to counsel.<br />
<li><u>The Penal Code (adapted from Portuguese law)</u>: Outlines criminal offences, penalties, and procedural rights.<br />
<li><u>The Civil Procedure Code</u>: Regulates the functioning of the judiciary and the administration of justice.<br />
<br />
</ul><br><br />
<li>'''International Sources of defendant’s rights:'''<br />
<br>São Tomé and Príncipe is a party to several international treaties, including:<br />
<ul><li><u>The African Charter on Human and Peoples’ Rights<br />
<li>The International Covenant on Civil and Political Rights (ICCPR)<br />
<li>The Convention Against Torture (CAT)</u></ul><br />
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==Rights of the Accused==<br />
<br />
<li> '''Right Against Unlawful Arrests, Searches and Seizures, or Detention:'''<br />
<br><u>The Constitution of São Tomé and Príncipe (art. 36)</u> ensures that no individual may be deprived of their liberty except in cases provided by law and always by decision or under the supervision of the appropriate court. <br />
<br>This provision safeguards individuals from arbitrary arrests and detentions.<br />
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<li>'''Right Not to be Tortured or Ill-Treated:'''<br />
<br>The Constitution explicitly states that the moral and physical integrity of individuals is inviolable. It prohibits subjecting anyone to torture or to cruel, inhuman, or degrading treatment or punishment. <br />
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<li>'''Right to Medical Care:'''<br />
<br>While the Constitution does not explicitly mention the right to medical care, it emphasizes the inviolability of personal integrity, which implies the necessity of access to medical services to maintain one's health and well-being.<br />
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<li>'''Right to be Informed of Charges:'''<br />
<br>The Constitution mandates that criminal procedures must ensure all defense guarantees. This includes informing the accused of the charges against them, allowing for adequate preparation of their defense.<br />
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<br><br />
<li>'''Right to Presumption of Innocence:''' <br />
Every accused person is presumed innocent until proven guilty. The Constitution requires that trials be conducted in the shortest time compatible with defence guarantees, upholding the principle of presumed innocence.<br />
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<li>'''Right Against Self-Incrimination:'''<br />
<br>The Constitution ensures that all evidence obtained through torture, coercion, or offenses to the physical or moral integrity of a person is null and void. This provision protects individuals from being compelled to incriminate themselves. <br />
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<li>'''Right to Counsel and Effective Assistance:'''<br />
<br>The accused has the right to choose defense counsel and to be assisted by them in all acts of the trial. The law specifies instances where such assistance is obligatory, ensuring effective legal representation. <br />
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<br><br />
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<li>'''Right to Fair Trial and Due Process:'''<br />
<br>Criminal procedures are designed to assure all defense guarantees, including the right to a fair and public trial. The Constitution emphasizes that no case may be removed from the court whose competence has been established by prior law, ensuring due process. <br />
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<li>'''Right to Bail:'''<br />
<br>While the Constitution does not explicitly mention the right to bail, it provides that no one may be deprived of freedom except in cases provided for by law and always by decision or with the review of the appropriate court. This implies that legal provisions exist regarding detention and possible release conditions. <br />
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<li>'''Right Against Ex Post Facto Prosecution:'''<br />
<br><u>The Constitution (art. 37)</u> stipulates that no one may be sentenced criminally except by virtue of prior law that declares punishable the action or omission. However, penal laws are applied retroactively when their content is more favorable to the accused or sentenced. <br />
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<br />
<li>'''Right Against Double Jeopardy:'''<br />
<br>The Constitution does not explicitly mention protection against double jeopardy. However, the general principles of criminal law and procedural guarantees aim to protect individuals from being tried or punished more than once for the same offense.<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Language Interpretation:'''<br />
<br>While the Constitution does not explicitly provide a right to language interpretation, the assurance of all defense guarantees in criminal procedures implies that the accused should understand the proceedings. This would necessitate interpretation services when needed. <br />
<br />
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==Rights of Counsel==<br />
<br />
<li>'''Right of Access to the Client and Confidential Communication'''<br />
<br>Defense attorneys are entitled to meet with their clients in private, without interference, to prepare a robust defense.<br />
<li>'''Right to Information'''<br />
<br>Lawyers must be granted access to evidence and case files to ensure transparency and adequate preparation.<br />
<br />
<br><br />
<br />
==Means of Protecting and Enforcing Rights==<br />
<br />
'''Exclusionary Rule:'''<br />
<br>- Evidence obtained in violation of fundamental rights or freedoms is inadmissible in court.<br />
<br>- This ensures that investigations and prosecutions are conducted within the limits of constitutional guarantees, safeguarding individual liberties.<br />
<br />
'''Nullity of Procedure:'''<br />
<br>The law provides mechanisms to nullify legal proceedings in specific situations:<br />
<br />
<li><u>Definitive Dismissal</u><br />
<br>Occurs when the court concludes that:<br />
<ol><li>The crime has not been committed.<br />
<li>The established facts do not constitute a crime.<br />
<li>Those prosecuted are exempt from criminal liability. </ol><br />
<br><br />
<li><u>Provisional Dismissal</u><br />
<br>Occurs when:<br />
<ol><li>Evidence is insufficient to demonstrate that a crime was committed.<br />
<li> Perpetrators, accomplices, or accessories remain unidentified despite proof of a criminal act.<br />
<li> The defendant’s dementia or severe health condition prevents them from defending themselves until recovery.</ol><br />
<br><br />
<li><u>Impact of Dismissals</u><br />
<ul><li>Final Dismissal: The case is permanently closed and cannot be reopened.<br />
<li>Provisional Dismissal: Proceedings remain open until new information or evidence arises unless the case is prescribed (time-barred).</ul><br />
<br><br />
<li><u>Special Cases</u><br />
<ul><li>If the defendant dies, proceedings may continue regarding the confiscation of goods or money acquired through the criminal act.<br />
<li>In such cases, heirs or legal representatives are held civilly liable unless they renounce ownership of the confiscated assets.</ul><br />
<br><br />
<li><u>Prosecutor's Request for Dismissal</u><br />
<ul><li>If the Public Prosecutor requests dismissal and no private prosecution is established, the court must notify interested parties. These parties have 15 days to pursue the criminal action if they deem it appropriate.<br />
<li>Failure to act within this timeframe leads to the withdrawal of both criminal and civil actions within the criminal process.</ul><br />
<br />
<br><br />
<br><br />
'''Civil Actions:'''<br />
<br> Victims of human rights violations can pursue remedies through civil litigation. Key avenues include:<br />
<ol><li>''Damages or Injunctions'': Plaintiffs may seek compensation or the cessation of human rights violations.<br />
<li>''Appeals to International Bodies'': Domestic decisions can be appealed to the European Court of Human Rights (ECHR).<br />
<li>''Ombudsman Assistance'': The national ombudsman protects and defends citizens' basic rights and freedoms.</ol><br />
<br />
'''Procedures in Civil Litigation'''<br />
<br> The Civil Procedure Code outlines two main procedural types:<br />
<ol><li><u> Ordinary Procedure</u><br />
<ul><li>Applies to cases involving amounts equal to or greater than €20,000, undetermined amounts, or matters not assigned a special procedure.<br />
<li>Structure:<br />
<br>- Written phase (demand, notification, and response).<br />
<br>- Preliminary hearing.<br />
<br>- Oral trial. </ul><br />
<li><u>Abbreviated Procedure</u><br />
<ul><li>Applies to cases involving amounts up to €20,000, matters with no specific procedure, or those governed by special procedures.<br />
<li>Structure:<br />
<br>- Written phase (allegations).<br />
<br>- Oral trial.<br />
<br>- Sentence (appealable if the claim exceeds €1,500). </ul></ol><br />
<br />
'''Special Procedures:'''<br />
<br>Certain cases—such as injunctions, family law matters, or labor disputes—are governed by distinct procedural rules.<br />
<br />
<br />
<br><br />
<br><br />
<br />
==Pre-Trial Procedure==<br />
<br />
In São Tomé and Príncipe, the Constitution and national laws provide several mechanisms to address police misconduct and ensure the protection of individual rights.<br />
<br />
<br><br>'''Constitutional Protections:'''<br />
<li>''' ''Habeas Corpus:'' ''' <u>Article 39 of the Constitution </u> grants citizens the right to habeas corpus in cases of imprisonment or illegal detention resulting from abuse of power. This legal action can be filed before the court, with procedures defined by law. <br />
<li>''' ''Criminal Procedure Guarantees:'' ''' <u>Article 40</u> ensures that criminal procedures uphold all defence guarantees, including the presumption of innocence, the right to a speedy trial, the right to choose and be assisted by defence counsel, and the exclusion of evidence obtained through torture or coercion. <br />
<br />
<br><br>'''Police Oversight and Complaints:'''<br />
<br>The national police and immigration services are under the Ministry of Defense and Public Security, which supervises and controls the military. Despite increased personnel and training, the police have faced challenges related to effectiveness and corruption. Impunity remains a concern, and efforts to reform the Criminal Investigation Police have been hindered by inadequate resources. <br />
<br><br>While the government permits human rights monitors to visit prisons and detention centres, there were no such visits reported in the past year. The Ministry of Justice is responsible for investigating and monitoring prison and detention center conditions. <br />
<br />
<br><br>'''Arrest and Detention Laws:'''<br />
<br>The law requires arrest warrants issued by an authorized official unless a suspect is caught in the act of committing a crime. Detainees must be informed promptly of charges against them and are allowed prompt access to family members and legal representation. A functioning bail system exists; however, severe budgetary constraints have resulted in lengthy pretrial detentions, with some detainees held for more than a year. <br />
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==Court Procedures==<br />
Under the <u>Criminal Procedure Code of São Tomé and Príncipe</u>, a criminal proceeding follows a similar structure to many other legal systems, comprising four distinct stages : investigation, indictment and plea, main trial, and legal remedy. Below is a detailed breakdown of the procedures based on the Criminal Procedure Code and the practices in São Tomé and Príncipe.<br />
<br><br><br />
'''PRE-TRIAL:'''<br />
<br><li>'''Initial Court Appearance'''<br />
<br>Under the Criminal Procedure Code, the pre-trial stage begins with an initial appearance before a judge. This stage allows the judge to review the circumstances of the detention and determine whether it is lawful. The defendant must be informed of the charges against them and their rights, including the right to counsel and to remain silent. The judge must ensure that the defendant understands the charges and their legal rights at the time of the initial court appearance. A hearing is held to decide on the necessity of detention, and the judge has the discretion to order the release of the defendant if the detention is deemed unlawful or unnecessary.<br />
<br><br><li>'''Charging Instrument'''<br />
<br>The indictment is a key legal instrument in criminal proceedings. The prosecution is responsible for preparing the indictment, which formally charges the defendant with specific crimes. In São Tomé and Príncipe, once an indictment is filed by the public prosecutor in the Basic Court, a judge is assigned to the case. The Code stipulates that the indictment should detail the specific facts and legal provisions upon which the charges are based. The defendant has the right to receive a copy of the indictment before the trial, ensuring they are informed of the charges and the evidence against them.<br />
<br><br><li>'''Preliminary Hearing'''<br />
<br>Following the filing of the indictment, a preliminary hearing may be held. This hearing serves to review the charges, determine the admissibility of evidence, and address any motions related to the case, such as requests for bail or dismissal. During the hearing, the court will verify whether the defendant understands the charges and allow them to enter a plea (guilty or not guilty). A second hearing may be scheduled, typically within a certain timeframe, to allow further review of the case or motions.<br />
<br><br><li>'''Pre-Trial Motions'''<br />
<br>The Criminal Procedure Code also allows for various pre-trial motions. These motions can be filed to challenge the evidence, request the exclusion of certain materials, or question the validity of the charges. The judge will rule on such motions before proceeding to the main trial, ensuring that any procedural errors or violations are addressed.<br />
<br><br><li>'''Discovery'''<br />
<br>The discovery process in São Tomé and Príncipe allows the defence to obtain evidence held by the prosecution. Upon the filing of an indictment, the state prosecutor is required to provide the defendant with all evidence that will be presented during the trial. This ensures that the defendant has the opportunity to prepare a defense and contest the evidence presented by the prosecution.<br />
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<br><br />
'''TRIAL:'''<br />
<br><br><li>'''Nature of the Trial'''<br />
<br>The main trial in São Tomé and Príncipe is conducted before a judge or a panel of judges. <br />
<br><u>Article 9 of the Criminal Procedure Code</u> stipulates that if the prosecution has sufficient evidence, it will proceed with filing the indictment. The trial itself is public, and the judge or panel of judges hears both the prosecution's and the defense's arguments. In the absence of a jury system, the judge(s) have full responsibility for the trial's outcome. The judge(s) can ask questions during the trial to clarify facts or direct the proceedings.<br />
<br><br><li>'''Defendant's Rights'''<br />
<br>The defendant has several important rights during the trial:<br />
<ul><li>''Right to make statements:'' <br>The defendant has the right to address all facts and evidence that may incriminate or favor them.<br />
<li>''Right to summon witnesses:'' <br>The defendant may request that witnesses testify on their behalf, subject to the court's approval.<br />
<li>''Right to cross-examine:'' <br>The defendant has the right to question witnesses who testify against them and challenge the evidence presented.</ul><br />
<br><br><li>'''Lawyers'''<br />
<br>The role of defence lawyers in São Tomé and Príncipe is critical. They ensure that the defendant’s rights are upheld during the trial and help present arguments in favor of the defendant. <br />
<br><br>However, due to limited resources, there is often a challenge in accessing skilled and experienced defense counsel, especially for those who cannot afford private representation. In some cases, NGOs provide pro bono legal aid to help ensure that justice is accessible to all.<br />
<br><br><li>'''Expert Witnesses'''<br />
<br>According to the <u>Criminal Procedure Code</u>, expert witnesses may be summoned to provide specialised knowledge or clarify evidence. Expert testimony is presented in the form of written reports, and the court may call experts to testify in person. The prosecution or defense can request the assistance of expert witnesses in relevant fields, such as forensic analysis or psychological evaluation.<br />
<br><br><li>'''Judges'''<br />
<br>The conduct of the trial depends on the judge or judges overseeing the case. In criminal cases, there may be a single judge or a panel of judges. A single judge handles less complex cases, while a panel of judges may be used for more serious offenses. The judge is responsible for ensuring a fair trial, ruling on motions, and ultimately delivering a verdict based on the facts presented.<br />
<br><br><li>'''Victims'''<br />
<br>Victims of crimes also have rights during the trial. According to the Criminal Procedure Code, victims can:<br />
<ul><li>''Participate as parties'' in the trial, including the right to make statements and present evidence.<br />
<li> ''Request restitution'' for harm suffered as a result of the crime.<br />
<li> ''Examine witnesses'' and present their case to the court.</ul><br />
<br />
<br><br />
<br><br />
'''SENTENCING'''<br />
<br><br>After the trial concludes, the judge or panel of judges will issue a sentence. <u>The Criminal Procedure Code</u> outlines the guidelines for sentencing, ensuring that the punishment is proportionate to the crime. However, there have been concerns about the quality of judgments, as reported in some reports, with calls for better training for judges and more consistent application of sentencing guidelines.<br />
<br><br />
<br><br />
'''APPEALS'''<br />
<br><li>'''Right to Appeal'''<br />
<br>Both the defence and prosecution have the right to appeal a decision to a higher court. <u>Article 368 of the Criminal Procedure Code</u> allows for an appeal following the announcement of a judgment, enabling the parties to challenge the verdict or the sentence. Appeals can be based on procedural errors, violations of rights, or misapplication of the law.<br />
<br><br><li>'''Other Grounds for Appeal'''<br />
<br>Appeals can be filed against a pre-trial judge’s decision (such as a ruling on detention) or a ruling concerning punishment. The Court of Appeals reviews these decisions, ensuring that there are no legal or procedural flaws that would undermine the fairness of the trial.<br />
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<br />
==Rights in Prison==<br />
<br />
<br />
<li>'''Right to Humane Conditions of Confinement:'''<br />
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<li>'''Right to Medical Care in Prison:'''<br />
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<br> <br />
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<li>'''Right to Mental Health Care:'''<br />
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<li>'''Restriction of rights:'''<br />
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<br><br />
<li>'''Rights of Special Populations:'''<br />
<br />
<ul><li>''Women'': <br />
<br />
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<li>''Juveniles:'' <br />
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</ul><br />
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==Resources==</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=S%C3%A3o_Tom%C3%A9_and_Pr%C3%ADncipe&diff=381642São Tomé and Príncipe2025-05-06T14:31:54Z<p>IBJadmin: /* Pre-Trial Procedure */</p>
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{{Languages|English}}<br />
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⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>.<br />
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{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
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|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;"> Legal Resources for Andorra </h2><br />
* The Constitution of the Democratic Republic of São Tomé and Príncipe <ref>https://www.constituteproject.org/constitution/Sao_Tome_and_Principe_2003?utm_source=chatgpt.com<br />
</ref><br />
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<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources </h2> <br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
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<br />
==Background==<br />
<br />
São Tomé and Príncipe is a small island nation located in the Gulf of Guinea, off the western coast of Central Africa. It gained independence from Portugal on July 12, 1975, and is Africa’s second-smallest country by both area and population. Its capital, São Tomé, is situated on the main island of the same name, which, along with Príncipe, constitutes the archipelago. <br />
<br><br>The country has a population of approximately 223,000 people (2023 estimate), with most inhabitants being of African descent, descended from various ethnic groups including the Forros, Angolares, and descendants of freed slaves. Portuguese is the official language, and most people speak Forro (a creole dialect) as a lingua franca.<br />
<br><br>São Tomé and Príncipe has a mixed economy, heavily reliant on agriculture (notably cocoa production) and increasingly on tourism. Political stability has improved significantly in recent decades, but the country still faces economic challenges, including poverty and reliance on external aid.<br />
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==The Legal system==<br />
São Tomé and Príncipe has a <u>civil law system</u>, rooted in Portuguese legal traditions. The country's legal framework is based on the '''1975 Constitution''', last amended in 2003, which establishes a multi-party democratic system with three branches of government:<br />
<ol><li>''Executive'': Led by the President and the Prime Minister.<br />
<li>''Legislative'': A unicameral National Assembly.<br />
<li> ''Judiciary'': Includes the Supreme Court of Justice, regional courts, and specialized courts.<br />
<br><br>The judiciary operates independently and has jurisdiction over constitutional matters, criminal justice, and civil disputes.</ol><br />
<br />
==Legal Aid==<br />
<br><br>'''State-Sponsored Legal Aid in São Tomé and Príncipe'''<br />
<br><u>Article 44 of the Constitution</u> of São Tomé and Príncipe guarantees the right to legal assistance for all citizens who cannot afford to hire a lawyer. This provision ensures that individuals facing criminal charges have access to free legal aid if they cannot bear the cost of hiring defense counsel. This is particularly significant given that many individuals in the country live below the poverty line.<br />
<br><br>The free legal assistance provided by the state is meant to ensure access to justice for those who cannot afford private counsel. The defense counsel assigned by the state must meet certain standards, including competence and independence. However, resources for legal aid remain limited, and the quality and availability of defense counsel can vary. There is no specific mention of an agency directly responsible for overseeing legal aid, but the Ministry of Justice is typically involved in coordinating these services. Legal aid is considered a right under the Constitution, but in practice, the effectiveness of the program is hindered by the limited number of lawyers and resources available to the government.<br />
<br><br><br />
When a defendant claims an inability to pay for legal representation, they are asked to declare their financial status, including providing a list of assets. This procedure is similar to what is practiced in some other countries to assess the need for public funding of legal services.<br />
<br><br><br />
'''Non-Governmental Organizations (NGOs) Providing Pro Bono Legal Aid'''<br />
<br>Although the state-sponsored legal aid system exists, it is not always fully effective due to the lack of sufficient resources, both financial and human. As a result, several non-governmental organizations (NGOs) provide pro bono legal aid to the population. These organizations often focus on marginalized groups such as women, children, and rural communities who are most vulnerable to human rights violations and lack access to justice.<br />
<br><br>A few examples of NGOs involved in providing legal aid include:<br />
<li>''The São Tomé and Príncipe Bar Association'' (Ordem dos Advogados de São Tomé e Príncipe), which sometimes coordinates pro bono legal services in cooperation with international NGOs.<br />
<li>''International Development Organizations'', such as the United Nations Development Programme (UNDP), which have supported the development of legal aid mechanisms in the country.<br />
<li>''Local Human Rights Organizations'', which focus on issues such as gender-based violence and child protection, and offer legal services to victims of human rights violations.<br />
<br><br>These NGOs play a crucial role in bridging the gap in legal services, especially for those who cannot access the limited state-sponsored legal aid.<br />
<br><br><br />
'''Number of Lawyers'''<br />
<br>As of recent data, the legal profession in São Tomé and Príncipe is small, with approximately 50 practicing lawyers in the country. This number is low compared to other nations and reflects the challenges in providing adequate legal services. Most lawyers are based in the capital, São Tomé, and work in both the civil and criminal fields, although the demand for legal services often exceeds the available legal workforce.<br />
<br><br><li> ''Prosecutors and Judges'': In 2023, the country had approximately 40 prosecutors and around 70 judges, with a significant concentration of the judiciary in urban areas.<br />
<br><br>The small legal community poses challenges in ensuring that every defendant, particularly in rural areas, has access to competent legal counsel. Many lawyers may also work multiple roles within the legal system, further stretching the resources available to the public.<br />
<br><br>'''Challenges to Access to Justice'''<br />
<br>While the constitutional guarantee for free legal aid exists, its implementation faces challenges, including:<br />
<li><u>Limited Resources:</u> Insufficient government funding for legal aid services and a lack of legal professionals available to provide assistance, especially outside of urban centres.<br />
<li><u>Awareness:</u> There is a lack of widespread public knowledge regarding the availability of free legal assistance, which prevents many citizens from requesting help when they need it.<br />
<li><u>Capacity and Quality of Legal Aid:</u> Even when free legal aid is available, the limited number of experienced and well-trained defence lawyers results in unequal access to justice, particularly for those accused of serious crimes or complex legal matters.<br />
<br><br><br />
'''International Support and Partnerships'''<br />
<br>To address these issues, various international organisations, including the ''United Nations Development Programme (UNDP)'', have supported legal aid efforts in São Tomé and Príncipe, providing both funding and expertise. Additionally, partnerships with regional organizations have facilitated legal reform efforts aimed at enhancing the effectiveness of legal aid and improving the country's overall legal system.<br />
<br><br>In conclusion, while São Tomé and Príncipe has a legal framework that guarantees the right to legal aid, the actual provision of these services is constrained by limited resources, a small legal community, and logistical barriers. The role of NGOs and international partnerships remains critical in expanding access to justice for the country’s most vulnerable populations.<br />
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These groups focus on raising awareness of legal rights, offering mediation services, and advocating for human rights protections.<br />
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==Source of Defendants Rights==<br />
<br />
<li>'''National Sources of Defendant’s rights:'''<br />
<br />
<ul><li><u>The Constitution (1975, as amended)</u>: Guarantees fundamental rights such as liberty, presumption of innocence, and access to counsel.<br />
<li><u>The Penal Code (adapted from Portuguese law)</u>: Outlines criminal offences, penalties, and procedural rights.<br />
<li><u>The Civil Procedure Code</u>: Regulates the functioning of the judiciary and the administration of justice.<br />
<br />
</ul><br><br />
<li>'''International Sources of defendant’s rights:'''<br />
<br>São Tomé and Príncipe is a party to several international treaties, including:<br />
<ul><li><u>The African Charter on Human and Peoples’ Rights<br />
<li>The International Covenant on Civil and Political Rights (ICCPR)<br />
<li>The Convention Against Torture (CAT)</u></ul><br />
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==Rights of the Accused==<br />
<br />
<li> '''Right Against Unlawful Arrests, Searches and Seizures, or Detention:'''<br />
<br><u>The Constitution of São Tomé and Príncipe (art. 36)</u> ensures that no individual may be deprived of their liberty except in cases provided by law and always by decision or under the supervision of the appropriate court. <br />
<br>This provision safeguards individuals from arbitrary arrests and detentions.<br />
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<li>'''Right Not to be Tortured or Ill-Treated:'''<br />
<br>The Constitution explicitly states that the moral and physical integrity of individuals is inviolable. It prohibits subjecting anyone to torture or to cruel, inhuman, or degrading treatment or punishment. <br />
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<li>'''Right to Medical Care:'''<br />
<br>While the Constitution does not explicitly mention the right to medical care, it emphasizes the inviolability of personal integrity, which implies the necessity of access to medical services to maintain one's health and well-being.<br />
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<li>'''Right to be Informed of Charges:'''<br />
<br>The Constitution mandates that criminal procedures must ensure all defense guarantees. This includes informing the accused of the charges against them, allowing for adequate preparation of their defense.<br />
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<br><br />
<br><br />
<li>'''Right to Presumption of Innocence:''' <br />
Every accused person is presumed innocent until proven guilty. The Constitution requires that trials be conducted in the shortest time compatible with defence guarantees, upholding the principle of presumed innocence.<br />
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<li>'''Right Against Self-Incrimination:'''<br />
<br>The Constitution ensures that all evidence obtained through torture, coercion, or offenses to the physical or moral integrity of a person is null and void. This provision protects individuals from being compelled to incriminate themselves. <br />
<br><br />
<br><br />
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<li>'''Right to Counsel and Effective Assistance:'''<br />
<br>The accused has the right to choose defense counsel and to be assisted by them in all acts of the trial. The law specifies instances where such assistance is obligatory, ensuring effective legal representation. <br />
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<li>'''Right to Fair Trial and Due Process:'''<br />
<br>Criminal procedures are designed to assure all defense guarantees, including the right to a fair and public trial. The Constitution emphasizes that no case may be removed from the court whose competence has been established by prior law, ensuring due process. <br />
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<li>'''Right to Bail:'''<br />
<br>While the Constitution does not explicitly mention the right to bail, it provides that no one may be deprived of freedom except in cases provided for by law and always by decision or with the review of the appropriate court. This implies that legal provisions exist regarding detention and possible release conditions. <br />
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<li>'''Right Against Ex Post Facto Prosecution:'''<br />
<br><u>The Constitution (art. 37)</u> stipulates that no one may be sentenced criminally except by virtue of prior law that declares punishable the action or omission. However, penal laws are applied retroactively when their content is more favorable to the accused or sentenced. <br />
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<li>'''Right Against Double Jeopardy:'''<br />
<br>The Constitution does not explicitly mention protection against double jeopardy. However, the general principles of criminal law and procedural guarantees aim to protect individuals from being tried or punished more than once for the same offense.<br />
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<li>'''Right to Language Interpretation:'''<br />
<br>While the Constitution does not explicitly provide a right to language interpretation, the assurance of all defense guarantees in criminal procedures implies that the accused should understand the proceedings. This would necessitate interpretation services when needed. <br />
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==Rights of Counsel==<br />
<br />
<li>'''Right of Access to the Client and Confidential Communication'''<br />
<br>Defense attorneys are entitled to meet with their clients in private, without interference, to prepare a robust defense.<br />
<li>'''Right to Information'''<br />
<br>Lawyers must be granted access to evidence and case files to ensure transparency and adequate preparation.<br />
<br />
<br><br />
<br />
==Means of Protecting and Enforcing Rights==<br />
<br />
'''Exclusionary Rule:'''<br />
<br>- Evidence obtained in violation of fundamental rights or freedoms is inadmissible in court.<br />
<br>- This ensures that investigations and prosecutions are conducted within the limits of constitutional guarantees, safeguarding individual liberties.<br />
<br />
'''Nullity of Procedure:'''<br />
<br>The law provides mechanisms to nullify legal proceedings in specific situations:<br />
<br />
<li><u>Definitive Dismissal</u><br />
<br>Occurs when the court concludes that:<br />
<ol><li>The crime has not been committed.<br />
<li>The established facts do not constitute a crime.<br />
<li>Those prosecuted are exempt from criminal liability. </ol><br />
<br><br />
<li><u>Provisional Dismissal</u><br />
<br>Occurs when:<br />
<ol><li>Evidence is insufficient to demonstrate that a crime was committed.<br />
<li> Perpetrators, accomplices, or accessories remain unidentified despite proof of a criminal act.<br />
<li> The defendant’s dementia or severe health condition prevents them from defending themselves until recovery.</ol><br />
<br><br />
<li><u>Impact of Dismissals</u><br />
<ul><li>Final Dismissal: The case is permanently closed and cannot be reopened.<br />
<li>Provisional Dismissal: Proceedings remain open until new information or evidence arises unless the case is prescribed (time-barred).</ul><br />
<br><br />
<li><u>Special Cases</u><br />
<ul><li>If the defendant dies, proceedings may continue regarding the confiscation of goods or money acquired through the criminal act.<br />
<li>In such cases, heirs or legal representatives are held civilly liable unless they renounce ownership of the confiscated assets.</ul><br />
<br><br />
<li><u>Prosecutor's Request for Dismissal</u><br />
<ul><li>If the Public Prosecutor requests dismissal and no private prosecution is established, the court must notify interested parties. These parties have 15 days to pursue the criminal action if they deem it appropriate.<br />
<li>Failure to act within this timeframe leads to the withdrawal of both criminal and civil actions within the criminal process.</ul><br />
<br />
<br><br />
<br><br />
'''Civil Actions:'''<br />
<br> Victims of human rights violations can pursue remedies through civil litigation. Key avenues include:<br />
<ol><li>''Damages or Injunctions'': Plaintiffs may seek compensation or the cessation of human rights violations.<br />
<li>''Appeals to International Bodies'': Domestic decisions can be appealed to the European Court of Human Rights (ECHR).<br />
<li>''Ombudsman Assistance'': The national ombudsman protects and defends citizens' basic rights and freedoms.</ol><br />
<br />
'''Procedures in Civil Litigation'''<br />
<br> The Civil Procedure Code outlines two main procedural types:<br />
<ol><li><u> Ordinary Procedure</u><br />
<ul><li>Applies to cases involving amounts equal to or greater than €20,000, undetermined amounts, or matters not assigned a special procedure.<br />
<li>Structure:<br />
<br>- Written phase (demand, notification, and response).<br />
<br>- Preliminary hearing.<br />
<br>- Oral trial. </ul><br />
<li><u>Abbreviated Procedure</u><br />
<ul><li>Applies to cases involving amounts up to €20,000, matters with no specific procedure, or those governed by special procedures.<br />
<li>Structure:<br />
<br>- Written phase (allegations).<br />
<br>- Oral trial.<br />
<br>- Sentence (appealable if the claim exceeds €1,500). </ul></ol><br />
<br />
'''Special Procedures:'''<br />
<br>Certain cases—such as injunctions, family law matters, or labor disputes—are governed by distinct procedural rules.<br />
<br />
<br />
<br><br />
<br><br />
<br />
==Pre-Trial Procedure==<br />
<br />
In São Tomé and Príncipe, the Constitution and national laws provide several mechanisms to address police misconduct and ensure the protection of individual rights.<br />
<br />
<br><br>'''Constitutional Protections:'''<br />
<li>''' ''Habeas Corpus:'' ''' <u>Article 39 of the Constitution </u> grants citizens the right to habeas corpus in cases of imprisonment or illegal detention resulting from abuse of power. This legal action can be filed before the court, with procedures defined by law. <br />
<li>''' ''Criminal Procedure Guarantees:'' ''' <u>Article 40</u> ensures that criminal procedures uphold all defence guarantees, including the presumption of innocence, the right to a speedy trial, the right to choose and be assisted by defence counsel, and the exclusion of evidence obtained through torture or coercion. <br />
<br />
<br><br>'''Police Oversight and Complaints:'''<br />
<br>The national police and immigration services are under the Ministry of Defense and Public Security, which supervises and controls the military. Despite increased personnel and training, the police have faced challenges related to effectiveness and corruption. Impunity remains a concern, and efforts to reform the Criminal Investigation Police have been hindered by inadequate resources. <br />
<br><br>While the government permits human rights monitors to visit prisons and detention centres, there were no such visits reported in the past year. The Ministry of Justice is responsible for investigating and monitoring prison and detention center conditions. <br />
<br />
<br><br>'''Arrest and Detention Laws:'''<br />
<br>The law requires arrest warrants issued by an authorized official unless a suspect is caught in the act of committing a crime. Detainees must be informed promptly of charges against them and are allowed prompt access to family members and legal representation. A functioning bail system exists; however, severe budgetary constraints have resulted in lengthy pretrial detentions, with some detainees held for more than a year. <br />
<br />
<br />
<br />
<br><br />
<br><br />
<br />
==Court Procedures==<br />
<br />
<li>'''Pre-Trial:'''<br />
<br />
<br />
<br><br />
<br><br />
<br />
<br><br />
<li>'''Sentencing:'''<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Appeals:'''<br />
<br><br />
<br />
<br />
<br><br />
<br />
==Rights in Prison==<br />
<br />
<br />
<li>'''Right to Humane Conditions of Confinement:'''<br />
<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Medical Care in Prison:'''<br />
<br />
<br />
<br> <br />
<br><br />
<li>'''Right to Mental Health Care:'''<br />
<br />
<br />
<br><br />
<br><br />
<li>'''Restriction of rights:'''<br />
<br />
<br />
<br><br />
<li>'''Rights of Special Populations:'''<br />
<br />
<ul><li>''Women'': <br />
<br />
<br />
<br />
<li>''Juveniles:'' <br />
<br />
</ul><br />
<br />
==Resources==</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=S%C3%A3o_Tom%C3%A9_and_Pr%C3%ADncipe&diff=381641São Tomé and Príncipe2025-05-06T14:23:52Z<p>IBJadmin: /* Means of Protecting and Enforcing Rights */</p>
<hr />
<div><br />
{{Languages|English}}<br />
<br />
<div class="box" style="padding: 40px; font-size: 1.5em; font-family: Arial, sans-serif; line-height: 1.5; border: 3px solid yellow; background-color: #FFFF00; text-align: center; margin: 30px;"><br />
⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>.<br />
</div><br />
<br />
<br />
{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;"> Legal Resources for Andorra </h2><br />
* The Constitution of the Democratic Republic of São Tomé and Príncipe <ref>https://www.constituteproject.org/constitution/Sao_Tome_and_Principe_2003?utm_source=chatgpt.com<br />
</ref><br />
<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources </h2> <br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
<br />
==Background==<br />
<br />
São Tomé and Príncipe is a small island nation located in the Gulf of Guinea, off the western coast of Central Africa. It gained independence from Portugal on July 12, 1975, and is Africa’s second-smallest country by both area and population. Its capital, São Tomé, is situated on the main island of the same name, which, along with Príncipe, constitutes the archipelago. <br />
<br><br>The country has a population of approximately 223,000 people (2023 estimate), with most inhabitants being of African descent, descended from various ethnic groups including the Forros, Angolares, and descendants of freed slaves. Portuguese is the official language, and most people speak Forro (a creole dialect) as a lingua franca.<br />
<br><br>São Tomé and Príncipe has a mixed economy, heavily reliant on agriculture (notably cocoa production) and increasingly on tourism. Political stability has improved significantly in recent decades, but the country still faces economic challenges, including poverty and reliance on external aid.<br />
<br />
<br><br />
<br />
==The Legal system==<br />
São Tomé and Príncipe has a <u>civil law system</u>, rooted in Portuguese legal traditions. The country's legal framework is based on the '''1975 Constitution''', last amended in 2003, which establishes a multi-party democratic system with three branches of government:<br />
<ol><li>''Executive'': Led by the President and the Prime Minister.<br />
<li>''Legislative'': A unicameral National Assembly.<br />
<li> ''Judiciary'': Includes the Supreme Court of Justice, regional courts, and specialized courts.<br />
<br><br>The judiciary operates independently and has jurisdiction over constitutional matters, criminal justice, and civil disputes.</ol><br />
<br />
==Legal Aid==<br />
<br><br>'''State-Sponsored Legal Aid in São Tomé and Príncipe'''<br />
<br><u>Article 44 of the Constitution</u> of São Tomé and Príncipe guarantees the right to legal assistance for all citizens who cannot afford to hire a lawyer. This provision ensures that individuals facing criminal charges have access to free legal aid if they cannot bear the cost of hiring defense counsel. This is particularly significant given that many individuals in the country live below the poverty line.<br />
<br><br>The free legal assistance provided by the state is meant to ensure access to justice for those who cannot afford private counsel. The defense counsel assigned by the state must meet certain standards, including competence and independence. However, resources for legal aid remain limited, and the quality and availability of defense counsel can vary. There is no specific mention of an agency directly responsible for overseeing legal aid, but the Ministry of Justice is typically involved in coordinating these services. Legal aid is considered a right under the Constitution, but in practice, the effectiveness of the program is hindered by the limited number of lawyers and resources available to the government.<br />
<br><br><br />
When a defendant claims an inability to pay for legal representation, they are asked to declare their financial status, including providing a list of assets. This procedure is similar to what is practiced in some other countries to assess the need for public funding of legal services.<br />
<br><br><br />
'''Non-Governmental Organizations (NGOs) Providing Pro Bono Legal Aid'''<br />
<br>Although the state-sponsored legal aid system exists, it is not always fully effective due to the lack of sufficient resources, both financial and human. As a result, several non-governmental organizations (NGOs) provide pro bono legal aid to the population. These organizations often focus on marginalized groups such as women, children, and rural communities who are most vulnerable to human rights violations and lack access to justice.<br />
<br><br>A few examples of NGOs involved in providing legal aid include:<br />
<li>''The São Tomé and Príncipe Bar Association'' (Ordem dos Advogados de São Tomé e Príncipe), which sometimes coordinates pro bono legal services in cooperation with international NGOs.<br />
<li>''International Development Organizations'', such as the United Nations Development Programme (UNDP), which have supported the development of legal aid mechanisms in the country.<br />
<li>''Local Human Rights Organizations'', which focus on issues such as gender-based violence and child protection, and offer legal services to victims of human rights violations.<br />
<br><br>These NGOs play a crucial role in bridging the gap in legal services, especially for those who cannot access the limited state-sponsored legal aid.<br />
<br><br><br />
'''Number of Lawyers'''<br />
<br>As of recent data, the legal profession in São Tomé and Príncipe is small, with approximately 50 practicing lawyers in the country. This number is low compared to other nations and reflects the challenges in providing adequate legal services. Most lawyers are based in the capital, São Tomé, and work in both the civil and criminal fields, although the demand for legal services often exceeds the available legal workforce.<br />
<br><br><li> ''Prosecutors and Judges'': In 2023, the country had approximately 40 prosecutors and around 70 judges, with a significant concentration of the judiciary in urban areas.<br />
<br><br>The small legal community poses challenges in ensuring that every defendant, particularly in rural areas, has access to competent legal counsel. Many lawyers may also work multiple roles within the legal system, further stretching the resources available to the public.<br />
<br><br>'''Challenges to Access to Justice'''<br />
<br>While the constitutional guarantee for free legal aid exists, its implementation faces challenges, including:<br />
<li><u>Limited Resources:</u> Insufficient government funding for legal aid services and a lack of legal professionals available to provide assistance, especially outside of urban centres.<br />
<li><u>Awareness:</u> There is a lack of widespread public knowledge regarding the availability of free legal assistance, which prevents many citizens from requesting help when they need it.<br />
<li><u>Capacity and Quality of Legal Aid:</u> Even when free legal aid is available, the limited number of experienced and well-trained defence lawyers results in unequal access to justice, particularly for those accused of serious crimes or complex legal matters.<br />
<br><br><br />
'''International Support and Partnerships'''<br />
<br>To address these issues, various international organisations, including the ''United Nations Development Programme (UNDP)'', have supported legal aid efforts in São Tomé and Príncipe, providing both funding and expertise. Additionally, partnerships with regional organizations have facilitated legal reform efforts aimed at enhancing the effectiveness of legal aid and improving the country's overall legal system.<br />
<br><br>In conclusion, while São Tomé and Príncipe has a legal framework that guarantees the right to legal aid, the actual provision of these services is constrained by limited resources, a small legal community, and logistical barriers. The role of NGOs and international partnerships remains critical in expanding access to justice for the country’s most vulnerable populations.<br />
<br />
<br />
<br />
<br />
These groups focus on raising awareness of legal rights, offering mediation services, and advocating for human rights protections.<br />
<br />
<br />
<br><br />
<br><br />
<br />
==Source of Defendants Rights==<br />
<br />
<li>'''National Sources of Defendant’s rights:'''<br />
<br />
<ul><li><u>The Constitution (1975, as amended)</u>: Guarantees fundamental rights such as liberty, presumption of innocence, and access to counsel.<br />
<li><u>The Penal Code (adapted from Portuguese law)</u>: Outlines criminal offences, penalties, and procedural rights.<br />
<li><u>The Civil Procedure Code</u>: Regulates the functioning of the judiciary and the administration of justice.<br />
<br />
</ul><br><br />
<li>'''International Sources of defendant’s rights:'''<br />
<br>São Tomé and Príncipe is a party to several international treaties, including:<br />
<ul><li><u>The African Charter on Human and Peoples’ Rights<br />
<li>The International Covenant on Civil and Political Rights (ICCPR)<br />
<li>The Convention Against Torture (CAT)</u></ul><br />
<br />
<br />
<br><br />
<br />
==Rights of the Accused==<br />
<br />
<li> '''Right Against Unlawful Arrests, Searches and Seizures, or Detention:'''<br />
<br><u>The Constitution of São Tomé and Príncipe (art. 36)</u> ensures that no individual may be deprived of their liberty except in cases provided by law and always by decision or under the supervision of the appropriate court. <br />
<br>This provision safeguards individuals from arbitrary arrests and detentions.<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right Not to be Tortured or Ill-Treated:'''<br />
<br>The Constitution explicitly states that the moral and physical integrity of individuals is inviolable. It prohibits subjecting anyone to torture or to cruel, inhuman, or degrading treatment or punishment. <br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Medical Care:'''<br />
<br>While the Constitution does not explicitly mention the right to medical care, it emphasizes the inviolability of personal integrity, which implies the necessity of access to medical services to maintain one's health and well-being.<br />
<br />
<br><br />
<br><br />
<br />
<br />
<li>'''Right to be Informed of Charges:'''<br />
<br>The Constitution mandates that criminal procedures must ensure all defense guarantees. This includes informing the accused of the charges against them, allowing for adequate preparation of their defense.<br />
<br />
<br><br />
<br><br />
<li>'''Right to Presumption of Innocence:''' <br />
Every accused person is presumed innocent until proven guilty. The Constitution requires that trials be conducted in the shortest time compatible with defence guarantees, upholding the principle of presumed innocence.<br />
<br><br />
<br><br />
<br />
<br />
<li>'''Right Against Self-Incrimination:'''<br />
<br>The Constitution ensures that all evidence obtained through torture, coercion, or offenses to the physical or moral integrity of a person is null and void. This provision protects individuals from being compelled to incriminate themselves. <br />
<br><br />
<br><br />
<br />
<li>'''Right to Counsel and Effective Assistance:'''<br />
<br>The accused has the right to choose defense counsel and to be assisted by them in all acts of the trial. The law specifies instances where such assistance is obligatory, ensuring effective legal representation. <br />
<br />
<br><br />
<br><br />
<li>'''Right to Fair Trial and Due Process:'''<br />
<br>Criminal procedures are designed to assure all defense guarantees, including the right to a fair and public trial. The Constitution emphasizes that no case may be removed from the court whose competence has been established by prior law, ensuring due process. <br />
<br />
<br><br />
<br><br />
<li>'''Right to Bail:'''<br />
<br>While the Constitution does not explicitly mention the right to bail, it provides that no one may be deprived of freedom except in cases provided for by law and always by decision or with the review of the appropriate court. This implies that legal provisions exist regarding detention and possible release conditions. <br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Ex Post Facto Prosecution:'''<br />
<br><u>The Constitution (art. 37)</u> stipulates that no one may be sentenced criminally except by virtue of prior law that declares punishable the action or omission. However, penal laws are applied retroactively when their content is more favorable to the accused or sentenced. <br />
<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Double Jeopardy:'''<br />
<br>The Constitution does not explicitly mention protection against double jeopardy. However, the general principles of criminal law and procedural guarantees aim to protect individuals from being tried or punished more than once for the same offense.<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Language Interpretation:'''<br />
<br>While the Constitution does not explicitly provide a right to language interpretation, the assurance of all defense guarantees in criminal procedures implies that the accused should understand the proceedings. This would necessitate interpretation services when needed. <br />
<br />
<br><br />
<br><br />
<br />
==Rights of Counsel==<br />
<br />
<li>'''Right of Access to the Client and Confidential Communication'''<br />
<br>Defense attorneys are entitled to meet with their clients in private, without interference, to prepare a robust defense.<br />
<li>'''Right to Information'''<br />
<br>Lawyers must be granted access to evidence and case files to ensure transparency and adequate preparation.<br />
<br />
<br><br />
<br />
==Means of Protecting and Enforcing Rights==<br />
<br />
'''Exclusionary Rule:'''<br />
<br>- Evidence obtained in violation of fundamental rights or freedoms is inadmissible in court.<br />
<br>- This ensures that investigations and prosecutions are conducted within the limits of constitutional guarantees, safeguarding individual liberties.<br />
<br />
'''Nullity of Procedure:'''<br />
<br>The law provides mechanisms to nullify legal proceedings in specific situations:<br />
<br />
<li><u>Definitive Dismissal</u><br />
<br>Occurs when the court concludes that:<br />
<ol><li>The crime has not been committed.<br />
<li>The established facts do not constitute a crime.<br />
<li>Those prosecuted are exempt from criminal liability. </ol><br />
<br><br />
<li><u>Provisional Dismissal</u><br />
<br>Occurs when:<br />
<ol><li>Evidence is insufficient to demonstrate that a crime was committed.<br />
<li> Perpetrators, accomplices, or accessories remain unidentified despite proof of a criminal act.<br />
<li> The defendant’s dementia or severe health condition prevents them from defending themselves until recovery.</ol><br />
<br><br />
<li><u>Impact of Dismissals</u><br />
<ul><li>Final Dismissal: The case is permanently closed and cannot be reopened.<br />
<li>Provisional Dismissal: Proceedings remain open until new information or evidence arises unless the case is prescribed (time-barred).</ul><br />
<br><br />
<li><u>Special Cases</u><br />
<ul><li>If the defendant dies, proceedings may continue regarding the confiscation of goods or money acquired through the criminal act.<br />
<li>In such cases, heirs or legal representatives are held civilly liable unless they renounce ownership of the confiscated assets.</ul><br />
<br><br />
<li><u>Prosecutor's Request for Dismissal</u><br />
<ul><li>If the Public Prosecutor requests dismissal and no private prosecution is established, the court must notify interested parties. These parties have 15 days to pursue the criminal action if they deem it appropriate.<br />
<li>Failure to act within this timeframe leads to the withdrawal of both criminal and civil actions within the criminal process.</ul><br />
<br />
<br><br />
<br><br />
'''Civil Actions:'''<br />
<br> Victims of human rights violations can pursue remedies through civil litigation. Key avenues include:<br />
<ol><li>''Damages or Injunctions'': Plaintiffs may seek compensation or the cessation of human rights violations.<br />
<li>''Appeals to International Bodies'': Domestic decisions can be appealed to the European Court of Human Rights (ECHR).<br />
<li>''Ombudsman Assistance'': The national ombudsman protects and defends citizens' basic rights and freedoms.</ol><br />
<br />
'''Procedures in Civil Litigation'''<br />
<br> The Civil Procedure Code outlines two main procedural types:<br />
<ol><li><u> Ordinary Procedure</u><br />
<ul><li>Applies to cases involving amounts equal to or greater than €20,000, undetermined amounts, or matters not assigned a special procedure.<br />
<li>Structure:<br />
<br>- Written phase (demand, notification, and response).<br />
<br>- Preliminary hearing.<br />
<br>- Oral trial. </ul><br />
<li><u>Abbreviated Procedure</u><br />
<ul><li>Applies to cases involving amounts up to €20,000, matters with no specific procedure, or those governed by special procedures.<br />
<li>Structure:<br />
<br>- Written phase (allegations).<br />
<br>- Oral trial.<br />
<br>- Sentence (appealable if the claim exceeds €1,500). </ul></ol><br />
<br />
'''Special Procedures:'''<br />
<br>Certain cases—such as injunctions, family law matters, or labor disputes—are governed by distinct procedural rules.<br />
<br />
<br />
<br><br />
<br><br />
<br />
==Pre-Trial Procedure==<br />
<br />
'''Police procedures'''<br />
<br />
<li>''Arrest, Search and Seizure Laws:''<br />
<br />
<br />
<br />
<li>''Interrogation:''<br />
<br />
<br />
<br><br />
<br><br />
<br />
==Court Procedures==<br />
<br />
<li>'''Pre-Trial:'''<br />
<br />
<br />
<br><br />
<br><br />
<br />
<br><br />
<li>'''Sentencing:'''<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Appeals:'''<br />
<br><br />
<br />
<br />
<br><br />
<br />
==Rights in Prison==<br />
<br />
<br />
<li>'''Right to Humane Conditions of Confinement:'''<br />
<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Medical Care in Prison:'''<br />
<br />
<br />
<br> <br />
<br><br />
<li>'''Right to Mental Health Care:'''<br />
<br />
<br />
<br><br />
<br><br />
<li>'''Restriction of rights:'''<br />
<br />
<br />
<br><br />
<li>'''Rights of Special Populations:'''<br />
<br />
<ul><li>''Women'': <br />
<br />
<br />
<br />
<li>''Juveniles:'' <br />
<br />
</ul><br />
<br />
==Resources==</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=S%C3%A3o_Tom%C3%A9_and_Pr%C3%ADncipe&diff=381640São Tomé and Príncipe2025-05-06T10:08:39Z<p>IBJadmin: /* Means of Protecting and Enforcing Rights */</p>
<hr />
<div><br />
{{Languages|English}}<br />
<br />
<div class="box" style="padding: 40px; font-size: 1.5em; font-family: Arial, sans-serif; line-height: 1.5; border: 3px solid yellow; background-color: #FFFF00; text-align: center; margin: 30px;"><br />
⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>.<br />
</div><br />
<br />
<br />
{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;"> Legal Resources for Andorra </h2><br />
* The Constitution of the Democratic Republic of São Tomé and Príncipe <ref>https://www.constituteproject.org/constitution/Sao_Tome_and_Principe_2003?utm_source=chatgpt.com<br />
</ref><br />
<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources </h2> <br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
<br />
==Background==<br />
<br />
São Tomé and Príncipe is a small island nation located in the Gulf of Guinea, off the western coast of Central Africa. It gained independence from Portugal on July 12, 1975, and is Africa’s second-smallest country by both area and population. Its capital, São Tomé, is situated on the main island of the same name, which, along with Príncipe, constitutes the archipelago. <br />
<br><br>The country has a population of approximately 223,000 people (2023 estimate), with most inhabitants being of African descent, descended from various ethnic groups including the Forros, Angolares, and descendants of freed slaves. Portuguese is the official language, and most people speak Forro (a creole dialect) as a lingua franca.<br />
<br><br>São Tomé and Príncipe has a mixed economy, heavily reliant on agriculture (notably cocoa production) and increasingly on tourism. Political stability has improved significantly in recent decades, but the country still faces economic challenges, including poverty and reliance on external aid.<br />
<br />
<br><br />
<br />
==The Legal system==<br />
São Tomé and Príncipe has a <u>civil law system</u>, rooted in Portuguese legal traditions. The country's legal framework is based on the '''1975 Constitution''', last amended in 2003, which establishes a multi-party democratic system with three branches of government:<br />
<ol><li>''Executive'': Led by the President and the Prime Minister.<br />
<li>''Legislative'': A unicameral National Assembly.<br />
<li> ''Judiciary'': Includes the Supreme Court of Justice, regional courts, and specialized courts.<br />
<br><br>The judiciary operates independently and has jurisdiction over constitutional matters, criminal justice, and civil disputes.</ol><br />
<br />
==Legal Aid==<br />
<br><br>'''State-Sponsored Legal Aid in São Tomé and Príncipe'''<br />
<br><u>Article 44 of the Constitution</u> of São Tomé and Príncipe guarantees the right to legal assistance for all citizens who cannot afford to hire a lawyer. This provision ensures that individuals facing criminal charges have access to free legal aid if they cannot bear the cost of hiring defense counsel. This is particularly significant given that many individuals in the country live below the poverty line.<br />
<br><br>The free legal assistance provided by the state is meant to ensure access to justice for those who cannot afford private counsel. The defense counsel assigned by the state must meet certain standards, including competence and independence. However, resources for legal aid remain limited, and the quality and availability of defense counsel can vary. There is no specific mention of an agency directly responsible for overseeing legal aid, but the Ministry of Justice is typically involved in coordinating these services. Legal aid is considered a right under the Constitution, but in practice, the effectiveness of the program is hindered by the limited number of lawyers and resources available to the government.<br />
<br><br><br />
When a defendant claims an inability to pay for legal representation, they are asked to declare their financial status, including providing a list of assets. This procedure is similar to what is practiced in some other countries to assess the need for public funding of legal services.<br />
<br><br><br />
'''Non-Governmental Organizations (NGOs) Providing Pro Bono Legal Aid'''<br />
<br>Although the state-sponsored legal aid system exists, it is not always fully effective due to the lack of sufficient resources, both financial and human. As a result, several non-governmental organizations (NGOs) provide pro bono legal aid to the population. These organizations often focus on marginalized groups such as women, children, and rural communities who are most vulnerable to human rights violations and lack access to justice.<br />
<br><br>A few examples of NGOs involved in providing legal aid include:<br />
<li>''The São Tomé and Príncipe Bar Association'' (Ordem dos Advogados de São Tomé e Príncipe), which sometimes coordinates pro bono legal services in cooperation with international NGOs.<br />
<li>''International Development Organizations'', such as the United Nations Development Programme (UNDP), which have supported the development of legal aid mechanisms in the country.<br />
<li>''Local Human Rights Organizations'', which focus on issues such as gender-based violence and child protection, and offer legal services to victims of human rights violations.<br />
<br><br>These NGOs play a crucial role in bridging the gap in legal services, especially for those who cannot access the limited state-sponsored legal aid.<br />
<br><br><br />
'''Number of Lawyers'''<br />
<br>As of recent data, the legal profession in São Tomé and Príncipe is small, with approximately 50 practicing lawyers in the country. This number is low compared to other nations and reflects the challenges in providing adequate legal services. Most lawyers are based in the capital, São Tomé, and work in both the civil and criminal fields, although the demand for legal services often exceeds the available legal workforce.<br />
<br><br><li> ''Prosecutors and Judges'': In 2023, the country had approximately 40 prosecutors and around 70 judges, with a significant concentration of the judiciary in urban areas.<br />
<br><br>The small legal community poses challenges in ensuring that every defendant, particularly in rural areas, has access to competent legal counsel. Many lawyers may also work multiple roles within the legal system, further stretching the resources available to the public.<br />
<br><br>'''Challenges to Access to Justice'''<br />
<br>While the constitutional guarantee for free legal aid exists, its implementation faces challenges, including:<br />
<li><u>Limited Resources:</u> Insufficient government funding for legal aid services and a lack of legal professionals available to provide assistance, especially outside of urban centres.<br />
<li><u>Awareness:</u> There is a lack of widespread public knowledge regarding the availability of free legal assistance, which prevents many citizens from requesting help when they need it.<br />
<li><u>Capacity and Quality of Legal Aid:</u> Even when free legal aid is available, the limited number of experienced and well-trained defence lawyers results in unequal access to justice, particularly for those accused of serious crimes or complex legal matters.<br />
<br><br><br />
'''International Support and Partnerships'''<br />
<br>To address these issues, various international organisations, including the ''United Nations Development Programme (UNDP)'', have supported legal aid efforts in São Tomé and Príncipe, providing both funding and expertise. Additionally, partnerships with regional organizations have facilitated legal reform efforts aimed at enhancing the effectiveness of legal aid and improving the country's overall legal system.<br />
<br><br>In conclusion, while São Tomé and Príncipe has a legal framework that guarantees the right to legal aid, the actual provision of these services is constrained by limited resources, a small legal community, and logistical barriers. The role of NGOs and international partnerships remains critical in expanding access to justice for the country’s most vulnerable populations.<br />
<br />
<br />
<br />
<br />
These groups focus on raising awareness of legal rights, offering mediation services, and advocating for human rights protections.<br />
<br />
<br />
<br><br />
<br><br />
<br />
==Source of Defendants Rights==<br />
<br />
<li>'''National Sources of Defendant’s rights:'''<br />
<br />
<ul><li><u>The Constitution (1975, as amended)</u>: Guarantees fundamental rights such as liberty, presumption of innocence, and access to counsel.<br />
<li><u>The Penal Code (adapted from Portuguese law)</u>: Outlines criminal offences, penalties, and procedural rights.<br />
<li><u>The Civil Procedure Code</u>: Regulates the functioning of the judiciary and the administration of justice.<br />
<br />
</ul><br><br />
<li>'''International Sources of defendant’s rights:'''<br />
<br>São Tomé and Príncipe is a party to several international treaties, including:<br />
<ul><li><u>The African Charter on Human and Peoples’ Rights<br />
<li>The International Covenant on Civil and Political Rights (ICCPR)<br />
<li>The Convention Against Torture (CAT)</u></ul><br />
<br />
<br />
<br><br />
<br />
==Rights of the Accused==<br />
<br />
<li> '''Right Against Unlawful Arrests, Searches and Seizures, or Detention:'''<br />
<br><u>The Constitution of São Tomé and Príncipe (art. 36)</u> ensures that no individual may be deprived of their liberty except in cases provided by law and always by decision or under the supervision of the appropriate court. <br />
<br>This provision safeguards individuals from arbitrary arrests and detentions.<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right Not to be Tortured or Ill-Treated:'''<br />
<br>The Constitution explicitly states that the moral and physical integrity of individuals is inviolable. It prohibits subjecting anyone to torture or to cruel, inhuman, or degrading treatment or punishment. <br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Medical Care:'''<br />
<br>While the Constitution does not explicitly mention the right to medical care, it emphasizes the inviolability of personal integrity, which implies the necessity of access to medical services to maintain one's health and well-being.<br />
<br />
<br><br />
<br><br />
<br />
<br />
<li>'''Right to be Informed of Charges:'''<br />
<br>The Constitution mandates that criminal procedures must ensure all defense guarantees. This includes informing the accused of the charges against them, allowing for adequate preparation of their defense.<br />
<br />
<br><br />
<br><br />
<li>'''Right to Presumption of Innocence:''' <br />
Every accused person is presumed innocent until proven guilty. The Constitution requires that trials be conducted in the shortest time compatible with defence guarantees, upholding the principle of presumed innocence.<br />
<br><br />
<br><br />
<br />
<br />
<li>'''Right Against Self-Incrimination:'''<br />
<br>The Constitution ensures that all evidence obtained through torture, coercion, or offenses to the physical or moral integrity of a person is null and void. This provision protects individuals from being compelled to incriminate themselves. <br />
<br><br />
<br><br />
<br />
<li>'''Right to Counsel and Effective Assistance:'''<br />
<br>The accused has the right to choose defense counsel and to be assisted by them in all acts of the trial. The law specifies instances where such assistance is obligatory, ensuring effective legal representation. <br />
<br />
<br><br />
<br><br />
<li>'''Right to Fair Trial and Due Process:'''<br />
<br>Criminal procedures are designed to assure all defense guarantees, including the right to a fair and public trial. The Constitution emphasizes that no case may be removed from the court whose competence has been established by prior law, ensuring due process. <br />
<br />
<br><br />
<br><br />
<li>'''Right to Bail:'''<br />
<br>While the Constitution does not explicitly mention the right to bail, it provides that no one may be deprived of freedom except in cases provided for by law and always by decision or with the review of the appropriate court. This implies that legal provisions exist regarding detention and possible release conditions. <br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Ex Post Facto Prosecution:'''<br />
<br><u>The Constitution (art. 37)</u> stipulates that no one may be sentenced criminally except by virtue of prior law that declares punishable the action or omission. However, penal laws are applied retroactively when their content is more favorable to the accused or sentenced. <br />
<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Double Jeopardy:'''<br />
<br>The Constitution does not explicitly mention protection against double jeopardy. However, the general principles of criminal law and procedural guarantees aim to protect individuals from being tried or punished more than once for the same offense.<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Language Interpretation:'''<br />
<br>While the Constitution does not explicitly provide a right to language interpretation, the assurance of all defense guarantees in criminal procedures implies that the accused should understand the proceedings. This would necessitate interpretation services when needed. <br />
<br />
<br><br />
<br><br />
<br />
==Rights of Counsel==<br />
<br />
<li>'''Right of Access to the Client and Confidential Communication'''<br />
<br>Defense attorneys are entitled to meet with their clients in private, without interference, to prepare a robust defense.<br />
<li>'''Right to Information'''<br />
<br>Lawyers must be granted access to evidence and case files to ensure transparency and adequate preparation.<br />
<br />
<br><br />
<br />
==Means of Protecting and Enforcing Rights==<br />
<br />
'''Exclusionary Rule:'''<br />
<br>- Evidence obtained in violation of fundamental rights or freedoms is inadmissible in court.<br />
<br>- This ensures that investigations and prosecutions are conducted within the limits of constitutional guarantees, safeguarding individual liberties.<br />
<br />
'''Nullity of Procedure:'''<br />
<br>The law provides mechanisms to nullify legal proceedings in specific situations:<br />
<br />
<li><u>Definitive Dismissal</u><br />
<br>Occurs when the court concludes that:<br />
<ol><li>The crime has not been committed.<br />
<li>The established facts do not constitute a crime.<br />
3. Those prosecuted are exempt from criminal liability.<br />
Provisional Dismissal<br />
Occurs when:<br />
1. Evidence is insufficient to demonstrate that a crime was committed.<br />
2. Perpetrators, accomplices, or accessories remain unidentified despite proof of a criminal act.<br />
3. The defendant’s dementia or severe health condition prevents them from defending themselves until recovery.<br />
Impact of Dismissals<br />
● Final Dismissal: The case is permanently closed and cannot be reopened.<br />
● Provisional Dismissal: Proceedings remain open until new information or evidence arises unless the case is prescribed (time-barred).<br />
Special Cases<br />
● If the defendant dies, proceedings may continue regarding the confiscation of goods or money acquired through the criminal act.<br />
● In such cases, heirs or legal representatives are held civilly liable unless they renounce ownership of the confiscated assets.<br />
Prosecutor's Request for Dismissal<br />
● If the Public Prosecutor requests dismissal and no private prosecution is established, the court must notify interested parties. These parties have 15 days to pursue the criminal action if they deem it appropriate.<br />
● Failure to act within this timeframe leads to the withdrawal of both criminal and civil actions within the criminal process.<br />
<br />
<br />
<br><br />
<br><br />
'''Civil Actions:'''<br />
<br><br />
<br />
<br><br />
<br><br />
<br />
==Pre-Trial Procedure==<br />
<br />
'''Police procedures'''<br />
<br />
<li>''Arrest, Search and Seizure Laws:''<br />
<br />
<br />
<br />
<li>''Interrogation:''<br />
<br />
<br />
<br><br />
<br><br />
<br />
==Court Procedures==<br />
<br />
<li>'''Pre-Trial:'''<br />
<br />
<br />
<br><br />
<br><br />
<br />
<br><br />
<li>'''Sentencing:'''<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Appeals:'''<br />
<br><br />
<br />
<br />
<br><br />
<br />
==Rights in Prison==<br />
<br />
<br />
<li>'''Right to Humane Conditions of Confinement:'''<br />
<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Medical Care in Prison:'''<br />
<br />
<br />
<br> <br />
<br><br />
<li>'''Right to Mental Health Care:'''<br />
<br />
<br />
<br><br />
<br><br />
<li>'''Restriction of rights:'''<br />
<br />
<br />
<br><br />
<li>'''Rights of Special Populations:'''<br />
<br />
<ul><li>''Women'': <br />
<br />
<br />
<br />
<li>''Juveniles:'' <br />
<br />
</ul><br />
<br />
==Resources==</div>IBJadminhttps://defensewiki.ibj.org/index.php?title=S%C3%A3o_Tom%C3%A9_and_Pr%C3%ADncipe&diff=381639São Tomé and Príncipe2025-05-06T09:50:27Z<p>IBJadmin: /* Rights of Counsel */</p>
<hr />
<div><br />
{{Languages|English}}<br />
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⚠️ <strong><u>THIS PAGE IS CURRENTLY UNDER LEGAL REVIEW.</u></strong> <br>If you are a practicing attorney in this jurisdiction and can provide corrections, please get in touch with us at <strong>internationalbridges@ibj.org</strong>.<br />
</div><br />
<br />
<br />
{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;"> Legal Resources for Andorra </h2><br />
* The Constitution of the Democratic Republic of São Tomé and Príncipe <ref>https://www.constituteproject.org/constitution/Sao_Tome_and_Principe_2003?utm_source=chatgpt.com<br />
</ref><br />
<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">E-Learning Resources </h2> <br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
<br />
==Background==<br />
<br />
São Tomé and Príncipe is a small island nation located in the Gulf of Guinea, off the western coast of Central Africa. It gained independence from Portugal on July 12, 1975, and is Africa’s second-smallest country by both area and population. Its capital, São Tomé, is situated on the main island of the same name, which, along with Príncipe, constitutes the archipelago. <br />
<br><br>The country has a population of approximately 223,000 people (2023 estimate), with most inhabitants being of African descent, descended from various ethnic groups including the Forros, Angolares, and descendants of freed slaves. Portuguese is the official language, and most people speak Forro (a creole dialect) as a lingua franca.<br />
<br><br>São Tomé and Príncipe has a mixed economy, heavily reliant on agriculture (notably cocoa production) and increasingly on tourism. Political stability has improved significantly in recent decades, but the country still faces economic challenges, including poverty and reliance on external aid.<br />
<br />
<br><br />
<br />
==The Legal system==<br />
São Tomé and Príncipe has a <u>civil law system</u>, rooted in Portuguese legal traditions. The country's legal framework is based on the '''1975 Constitution''', last amended in 2003, which establishes a multi-party democratic system with three branches of government:<br />
<ol><li>''Executive'': Led by the President and the Prime Minister.<br />
<li>''Legislative'': A unicameral National Assembly.<br />
<li> ''Judiciary'': Includes the Supreme Court of Justice, regional courts, and specialized courts.<br />
<br><br>The judiciary operates independently and has jurisdiction over constitutional matters, criminal justice, and civil disputes.</ol><br />
<br />
==Legal Aid==<br />
<br><br>'''State-Sponsored Legal Aid in São Tomé and Príncipe'''<br />
<br><u>Article 44 of the Constitution</u> of São Tomé and Príncipe guarantees the right to legal assistance for all citizens who cannot afford to hire a lawyer. This provision ensures that individuals facing criminal charges have access to free legal aid if they cannot bear the cost of hiring defense counsel. This is particularly significant given that many individuals in the country live below the poverty line.<br />
<br><br>The free legal assistance provided by the state is meant to ensure access to justice for those who cannot afford private counsel. The defense counsel assigned by the state must meet certain standards, including competence and independence. However, resources for legal aid remain limited, and the quality and availability of defense counsel can vary. There is no specific mention of an agency directly responsible for overseeing legal aid, but the Ministry of Justice is typically involved in coordinating these services. Legal aid is considered a right under the Constitution, but in practice, the effectiveness of the program is hindered by the limited number of lawyers and resources available to the government.<br />
<br><br><br />
When a defendant claims an inability to pay for legal representation, they are asked to declare their financial status, including providing a list of assets. This procedure is similar to what is practiced in some other countries to assess the need for public funding of legal services.<br />
<br><br><br />
'''Non-Governmental Organizations (NGOs) Providing Pro Bono Legal Aid'''<br />
<br>Although the state-sponsored legal aid system exists, it is not always fully effective due to the lack of sufficient resources, both financial and human. As a result, several non-governmental organizations (NGOs) provide pro bono legal aid to the population. These organizations often focus on marginalized groups such as women, children, and rural communities who are most vulnerable to human rights violations and lack access to justice.<br />
<br><br>A few examples of NGOs involved in providing legal aid include:<br />
<li>''The São Tomé and Príncipe Bar Association'' (Ordem dos Advogados de São Tomé e Príncipe), which sometimes coordinates pro bono legal services in cooperation with international NGOs.<br />
<li>''International Development Organizations'', such as the United Nations Development Programme (UNDP), which have supported the development of legal aid mechanisms in the country.<br />
<li>''Local Human Rights Organizations'', which focus on issues such as gender-based violence and child protection, and offer legal services to victims of human rights violations.<br />
<br><br>These NGOs play a crucial role in bridging the gap in legal services, especially for those who cannot access the limited state-sponsored legal aid.<br />
<br><br><br />
'''Number of Lawyers'''<br />
<br>As of recent data, the legal profession in São Tomé and Príncipe is small, with approximately 50 practicing lawyers in the country. This number is low compared to other nations and reflects the challenges in providing adequate legal services. Most lawyers are based in the capital, São Tomé, and work in both the civil and criminal fields, although the demand for legal services often exceeds the available legal workforce.<br />
<br><br><li> ''Prosecutors and Judges'': In 2023, the country had approximately 40 prosecutors and around 70 judges, with a significant concentration of the judiciary in urban areas.<br />
<br><br>The small legal community poses challenges in ensuring that every defendant, particularly in rural areas, has access to competent legal counsel. Many lawyers may also work multiple roles within the legal system, further stretching the resources available to the public.<br />
<br><br>'''Challenges to Access to Justice'''<br />
<br>While the constitutional guarantee for free legal aid exists, its implementation faces challenges, including:<br />
<li><u>Limited Resources:</u> Insufficient government funding for legal aid services and a lack of legal professionals available to provide assistance, especially outside of urban centres.<br />
<li><u>Awareness:</u> There is a lack of widespread public knowledge regarding the availability of free legal assistance, which prevents many citizens from requesting help when they need it.<br />
<li><u>Capacity and Quality of Legal Aid:</u> Even when free legal aid is available, the limited number of experienced and well-trained defence lawyers results in unequal access to justice, particularly for those accused of serious crimes or complex legal matters.<br />
<br><br><br />
'''International Support and Partnerships'''<br />
<br>To address these issues, various international organisations, including the ''United Nations Development Programme (UNDP)'', have supported legal aid efforts in São Tomé and Príncipe, providing both funding and expertise. Additionally, partnerships with regional organizations have facilitated legal reform efforts aimed at enhancing the effectiveness of legal aid and improving the country's overall legal system.<br />
<br><br>In conclusion, while São Tomé and Príncipe has a legal framework that guarantees the right to legal aid, the actual provision of these services is constrained by limited resources, a small legal community, and logistical barriers. The role of NGOs and international partnerships remains critical in expanding access to justice for the country’s most vulnerable populations.<br />
<br />
<br />
<br />
<br />
These groups focus on raising awareness of legal rights, offering mediation services, and advocating for human rights protections.<br />
<br />
<br />
<br><br />
<br><br />
<br />
==Source of Defendants Rights==<br />
<br />
<li>'''National Sources of Defendant’s rights:'''<br />
<br />
<ul><li><u>The Constitution (1975, as amended)</u>: Guarantees fundamental rights such as liberty, presumption of innocence, and access to counsel.<br />
<li><u>The Penal Code (adapted from Portuguese law)</u>: Outlines criminal offences, penalties, and procedural rights.<br />
<li><u>The Civil Procedure Code</u>: Regulates the functioning of the judiciary and the administration of justice.<br />
<br />
</ul><br><br />
<li>'''International Sources of defendant’s rights:'''<br />
<br>São Tomé and Príncipe is a party to several international treaties, including:<br />
<ul><li><u>The African Charter on Human and Peoples’ Rights<br />
<li>The International Covenant on Civil and Political Rights (ICCPR)<br />
<li>The Convention Against Torture (CAT)</u></ul><br />
<br />
<br />
<br><br />
<br />
==Rights of the Accused==<br />
<br />
<li> '''Right Against Unlawful Arrests, Searches and Seizures, or Detention:'''<br />
<br><u>The Constitution of São Tomé and Príncipe (art. 36)</u> ensures that no individual may be deprived of their liberty except in cases provided by law and always by decision or under the supervision of the appropriate court. <br />
<br>This provision safeguards individuals from arbitrary arrests and detentions.<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right Not to be Tortured or Ill-Treated:'''<br />
<br>The Constitution explicitly states that the moral and physical integrity of individuals is inviolable. It prohibits subjecting anyone to torture or to cruel, inhuman, or degrading treatment or punishment. <br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Medical Care:'''<br />
<br>While the Constitution does not explicitly mention the right to medical care, it emphasizes the inviolability of personal integrity, which implies the necessity of access to medical services to maintain one's health and well-being.<br />
<br />
<br><br />
<br><br />
<br />
<br />
<li>'''Right to be Informed of Charges:'''<br />
<br>The Constitution mandates that criminal procedures must ensure all defense guarantees. This includes informing the accused of the charges against them, allowing for adequate preparation of their defense.<br />
<br />
<br><br />
<br><br />
<li>'''Right to Presumption of Innocence:''' <br />
Every accused person is presumed innocent until proven guilty. The Constitution requires that trials be conducted in the shortest time compatible with defence guarantees, upholding the principle of presumed innocence.<br />
<br><br />
<br><br />
<br />
<br />
<li>'''Right Against Self-Incrimination:'''<br />
<br>The Constitution ensures that all evidence obtained through torture, coercion, or offenses to the physical or moral integrity of a person is null and void. This provision protects individuals from being compelled to incriminate themselves. <br />
<br><br />
<br><br />
<br />
<li>'''Right to Counsel and Effective Assistance:'''<br />
<br>The accused has the right to choose defense counsel and to be assisted by them in all acts of the trial. The law specifies instances where such assistance is obligatory, ensuring effective legal representation. <br />
<br />
<br><br />
<br><br />
<li>'''Right to Fair Trial and Due Process:'''<br />
<br>Criminal procedures are designed to assure all defense guarantees, including the right to a fair and public trial. The Constitution emphasizes that no case may be removed from the court whose competence has been established by prior law, ensuring due process. <br />
<br />
<br><br />
<br><br />
<li>'''Right to Bail:'''<br />
<br>While the Constitution does not explicitly mention the right to bail, it provides that no one may be deprived of freedom except in cases provided for by law and always by decision or with the review of the appropriate court. This implies that legal provisions exist regarding detention and possible release conditions. <br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Ex Post Facto Prosecution:'''<br />
<br><u>The Constitution (art. 37)</u> stipulates that no one may be sentenced criminally except by virtue of prior law that declares punishable the action or omission. However, penal laws are applied retroactively when their content is more favorable to the accused or sentenced. <br />
<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right Against Double Jeopardy:'''<br />
<br>The Constitution does not explicitly mention protection against double jeopardy. However, the general principles of criminal law and procedural guarantees aim to protect individuals from being tried or punished more than once for the same offense.<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Right to Language Interpretation:'''<br />
<br>While the Constitution does not explicitly provide a right to language interpretation, the assurance of all defense guarantees in criminal procedures implies that the accused should understand the proceedings. This would necessitate interpretation services when needed. <br />
<br />
<br><br />
<br><br />
<br />
==Rights of Counsel==<br />
<br />
<li>'''Right of Access to the Client and Confidential Communication'''<br />
<br>Defense attorneys are entitled to meet with their clients in private, without interference, to prepare a robust defense.<br />
<li>'''Right to Information'''<br />
<br>Lawyers must be granted access to evidence and case files to ensure transparency and adequate preparation.<br />
<br />
<br><br />
<br />
==Means of Protecting and Enforcing Rights==<br />
<br />
'''Exclusionary Rule:'''<br />
<br />
<br />
'''Nullity of Procedure:'''<br />
<br />
<br />
<br />
<br><br />
<br><br />
'''Civil Actions:'''<br />
<br><br />
<br />
<br><br />
<br><br />
==Pre-Trial Procedure==<br />
<br />
'''Police procedures'''<br />
<br />
<li>''Arrest, Search and Seizure Laws:''<br />
<br />
<br />
<br />
<li>''Interrogation:''<br />
<br />
<br />
<br><br />
<br><br />
<br />
==Court Procedures==<br />
<br />
<li>'''Pre-Trial:'''<br />
<br />
<br />
<br><br />
<br><br />
<br />
<br><br />
<li>'''Sentencing:'''<br />
<br />
<br />
<br><br />
<br><br />
<br />
<li>'''Appeals:'''<br />
<br><br />
<br />
<br />
<br><br />
<br />
==Rights in Prison==<br />
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<li>'''Right to Humane Conditions of Confinement:'''<br />
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<li>'''Right to Medical Care in Prison:'''<br />
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<li>'''Right to Mental Health Care:'''<br />
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<li>'''Restriction of rights:'''<br />
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<li>'''Rights of Special Populations:'''<br />
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<ul><li>''Women'': <br />
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<li>''Juveniles:'' <br />
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==Resources==</div>IBJadmin