by Jacob Magro – Trainee Advocate
Photo source: The Malta Police Force
The ‘notitiae criminis’ is what sets criminal prosecution in motion. The term may in fact be loosely defined as a notice, communicated to the competent authorities, that a criminal offence is alleged to have been committed. The police, who are vested with the right of criminal action in most instances in Malta, may become aware of the commission of an offence through their own efforts and thus independently of third party intervention. However, knowledge that an offence has been committed may also emerge from other sources outside the police force. In fact, one may contend that the primary detectors of criminal offences are ordinary citizens since few offences would be brought to justice were it not for private individuals who notify the police that an offence has been committed.
Maltese law provides for three different methods as to how notice of an offence may be lodged, namely; through a Report, an Information or a Complaint.
The Criminal Code affords no definition of ‘report’, however it can be described as the information conveyed by the person or persons who have a legal duty to communicate such information to the competent authorities. Therefore, every public officer who becomes aware of an offence upon which criminal proceedings may be instituted ex officio, has a duty of making it known to his/her superiors. For instance, under the Police Act, police officers are duty bound to disclose certain disciplinary violations or offences by fellow officers, and non-observance amounts to an offence punishable with imprisonment. This constitutes an exception to the general rule that failure to notify the authorities of an offence is not backed by criminal sanction.
On the other hand, an ‘information’ (referred to in Maltese as denunzja) may be communicated to the police by any ordinary citizen – however without any legal duty or obligation to actually do so. In Malta, when an individual supplies information of an offence to the police, the term used by many is ‘report’ (i.e. ‘rapport lill-pulizija’), however, technically and legally speaking, ‘report’ is not the correct legal word to use in such a context, since what one would really and truly be doing in these scenarios is providing the police with aiding information, i.e. a ‘denunzja’ and not a ‘rapport’. Article 536 outlines the content of an ‘information’ as follows:
“The informer shall clearly state the fact with all its circumstances and shall, as far as possible, furnish all such particulars as may be requisite to ascertain the offence, to establish the nature thereof as well as to make known the principals and the accomplices.”
Lastly, the ‘complaint’ (referred to in Maltese as kwerela) differs from an ‘information’ or a ‘report’ insofar as it must necessarily be lodged by the party aggrieved or by someone on his/her behalf. When a person furnishes information, there need not be immediate personal interest, but the filing of a complaint in itself signifies the desire to obtain redress because of personal injury sustained by an offence. The words used in Article 538 of the Criminal Code are in fact indicative of this desire to obtain redress:
Every person who feels himself aggrieved by any offence and desires to lodge a complaint for the punishment of the offender, if known, or, if not known, in case he should be discovered, may make such complaint to any Police officer, even by letter.”
In the case of certain offences, a complaint is essential for the initiation of a criminal action. In these instances, the police cannot proceed ex officio unless the injured party would have lodged a complaint. This however does not mean that a person is unable to file a complaint for an offence that does not in fact require a complaint. This implies that an aggrieved person may very well file a complaint even if the offence complained of may be prosecuted ex officio by the police. This is simply because the complaint is a form of ‘notitia criminis’, i.e. one of the modes through which the police become aware that an offence has been committed.
Worthy of mention is the fact that a complaint may also be made verbally, and if it is not reduced to writing, no bar to the institution of criminal proceedings arises. Moreover, the individual lodging the complaint (referred to as ‘the complainant’) reserves the right to waive his complaint up until final judgment is pronounced and unless the offences being prosecuted are ex officio offences, the case would discontinue upon the waiver of the complaint made by the parte-civile in the proceedings. However, if an objection to such waiver is raised by the person charged, the proceedings would continue anyway.
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