Diagnóstico

Article 210

If a person is caught in the act of committing a criminal offence prosecuted ex officio or is being pursued, the police or any other person shall be authorized to arrest him or her provisionally even without a court order. The person deprived of his or her liberty by persons other than the police shall be immediately turned over to the police or, where that proves impossible, the police or the public prosecutor must be immediately notified. The police shall act in accordance with Article 211 and 212 of the present Code.

Article 211

The police may deprive a person of liberty if there are reasons for detention under Article 281 paragraph 1 of the present Code, but shall be obliged to bring him or her without delay to a pre-trial judge to rule on detention on remand.

Article 212

(1) Exceptionally the police can arrest and detain a person if:

1) There is a grounded suspicion that he or she has committed a criminal offence which is prosecuted ex officio;

2) Arrest and detention is necessary to establish the identity of the person, to check an alibi or to collect information and items of evidence for the criminal offence in question; and

3) There are reasons for detention under Article 281 paragraph 1 subparagraph 2 points (i) and (iii) of the present Code; or there is good reason to fear that the person might destroy evidence of the criminal offence (Article 281 paragraph 1 subparagraph 2, point (ii) of the present Code).

(2) The arrest and detention under paragraph 1 of the present article shall be authorized by the public prosecutor or, when due to exigent circumstances such authorization cannot be obtained prior to arrest, by the police who must inform the public prosecutor immediately after the arrest.

(3) Upon arrest, the arrested person shall be informed:

1) Orally of the rights set forth in Article 214 of the present Code; and

2) In writing of the other rights which he or she enjoys under the present Code. (4) Detention under the present article may not exceed seventy-two hours from the time of arrest. On the expiry of that period the police shall release the detainee, unless a pre-trial judge has ordered detention on remand.

(5) As soon as possible after the arrest and no later than six hours from the time of the arrest, the public prosecutor or an authorized senior police officer shall issue to the arrested person a written decision on detention which shall include the first and last name of the arrested person, the place, date, and exact time of the arrest, the criminal offence of which he or she is suspected, the legal basis for the arrest and an instruction on the right of appeal. (6) The arrested person shall have the right to appeal a decision under paragraph 5 of the present article to the pre-trial judge. The police and the public prosecutor have a duty to ensure that the appeal is delivered to the pre-trial judge. The appeal shall not stay execution of the decision. The pre-trial judge shall decide on the appeal within forty-eight hours of the arrest.

Article 213

(1) An arrested person has the right to the immediate assistance of defence counsel of his or her own choice upon arrest.

(2) If the arrested person does not engage a defence counsel and no one engages a defence counsel for him or her under Article 69 paragraph 6 of the present Code, he or she shall be provided with a defence counsel, in accordance with UNMIK Administrative Direction No. 2001/15 of 13 October 2001 Implementing Regulation No. 2001/28 on the Rights of Persons Arrested by Law Enforcement Authorities.

(3) The arrested person has the right to communicate confidentially with defence counsel orally and in writing. Communications between an arrested person and his or her defence counsel may be within sight but not within the hearing of a police officer.

(4) The right to the assistance of defence counsel may be waived in accordance with Article 69 paragraphs 3, 4 and 5 of the present Code.

(5) If the arrested person is suspected of terrorism or organized crime and there are grounds to believe that the defence counsel chosen by the arrested person is involved in the commission of the criminal offence or will obstruct the conduct of the investigation, the pre- trial judge may, upon the application of the public prosecutor, order that alternative defence counsel be appointed to represent the arrested person for a maximum period of seventy-two hours from the time of arrest.

Article 214

(1) An arrested person has the following rights:

1) To be informed about the reasons for the arrest, in a language that he or she understands;

2) To remain silent and not to answer any questions, except to give information about his or her identity;

3) To be given the free assistance of an interpreter, if he or she cannot understand or speak the language of the police;

4) To receive the assistance of defence counsel and to have defence counsel provided if he or she cannot afford to pay for legal assistance;

5) To notify or require the police to notify a family member or another appropriate person of his or her choice about the arrest; and

6) To receive a medical examination and medical treatment, including psychiatric treatment.

(2) If the arrested person is a foreign national, he or she has the right to notify or to have notified and to communicate orally or in writing with the liaison office or the diplomatic mission of the State of which he or she is a national or with the representative of a competent international organization, if he or she is a refugee or is otherwise under the protection of an international organization.

Article 215

(1) An arrested person has the right to notify or to require the police to notify a family member or another appropriate person of his or her choice about the arrest and the place of detention, immediately after the arrest, and about any subsequent change in the place of detention, immediately after such change.

(2) When an arrested person has not reached the age of eighteen years, the police shall notify the legal representative of the arrested person about the arrest and the place of detention immediately after the arrest, and about any subsequent change in the place of detention, immediately after such change. If such notification is impossible, would be detrimental to the interests of the arrested person or is expressly refused by the arrested person, the police shall notify the Centre for Social Work.

(3) When an arrested person displays signs of mental disorder or disability, the police shall notify a person nominated by the arrested person and the Centre for Social Work about the arrest and the place of detention immediately after the arrest, and about any subsequent change in the place of detention, immediately after such change.

(4) Notification of a family member or another appropriate person in accordance with paragraph 1 of the present article may be delayed for up to twenty-four hours where the public prosecutor determines that the delay is required by the exceptional needs of the investigation of the case. There shall be no delay if the arrested person is under 18 years of age or displays signs of mental disorder or disability.

Article 216

(1) An arrested person has the right, upon request, to be examined by a doctor or dentist of his or her own choice as promptly as possible after his or her arrest and at any time during detention. If such doctor or dentist is not available, a doctor or dentist shall be designated by the police.

(2) An arrested person has the right to medical treatment, including psychiatric treatment, whenever necessary, upon the request of the arrested person or family members.

(3) The police may also appoint a doctor to conduct a medical examination or to provide medical treatment at any time in the case of physical injury or other apparent medical necessity. In case the arrested person refuses to undergo a medical examination or to accept medical treatment, the doctor shall render a final decision on the necessity of such examination or treatment, after due consideration of the rights of the arrested person.

(4) If an arrested person displays signs of mental illness, the police may immediately order an examination by a psychiatrist.

(5) The results of any medical examination or any medical treatment undertaken pursuant to the present article shall be duly recorded, and such records shall be made available to the arrested person and his or her defence counsel.

Article 217

(1) An arrested person shall be detained separately from sentenced persons or persons in detention on remand.

(2) Persons of different sex shall not be detained in the same room.

(3) A person detained for more than twelve hours shall be provided with three meals daily.

(4) In any period of twenty-four hours, an arrested person shall have the right to at least eight hours of uninterrupted rest, during which he or she shall not be examined and shall not be disturbed by the police in connection with the investigation.

Article 218

(1) During all examinations by the police, an arrested person has the right to the presence of defence counsel. If defence counsel does not appear within two hours of being informed of the arrest, the police shall arrange alternative defence counsel for him or her. Thereafter, if the alternative defence counsel does not appear within one hour of being contacted by the police, the arrested person may be examined only if the public prosecutor or the police determine that further delay would seriously impair the conduct of the investigation.

(2) Article 231, Article 232, Article 233 paragraphs 2 and 3, Article 234 and Article 235 of the present Code shall apply mutatis mutandis to the examination of the arrested person. (3) There shall be short breaks in the examination of an arrested person at intervals of approximately two hours. A break may be delayed if there are reasonable grounds to believe that delay would:

1) Involve a risk of harm to persons or serious loss of, or damage to, property;

2) Unnecessarily prolong the person’s detention or the conclusion of the examination; or

3) Otherwise prejudice the outcome of the investigation.

(4) During an examination an arrested person shall not be required to stand and shall not be denied food, water or any necessary medical attention.

Article 219

(1) The police shall keep a single written record of all actions undertaken with respect to an arrested person, including:

1) The personal data of the arrested person; 2) The reasons for the arrest;

3) The criminal offence of which he or she is suspected; 4) The authorization or notification of the public prosecutor; 5) The place, date, and exact time of the arrest;

6) The circumstances of the arrest;

7) Any decision of the public prosecutor or an authorized senior police officer regarding detention;

8) The place of detention;

10) Oral and written notification to the arrested person of his or her rights, as provided for in Article 212 paragraph 3 of the present Code;

11) Information about the exercise of the rights, as provided for in Articles 214 of the present Code, especially the right to defence counsel and to notification of family members or other appropriate persons;

12) Visible injuries or other signs which suggest the need for medical help;

13) The conduct of a medical examination or the provision of medical treatment; and 14) Information about the provisional security search of the person and a description

of objects taken from the person at the time of the arrest or during detention. (2) The police shall keep a written record of any examination of the arrested person, including the time of beginning and concluding the examination and the identity of the police officer who conducted the examination and any other persons present. If the defence counsel was not present, this shall be duly noted.

(3) The written records under paragraph 1 of the present article shall be signed by the appropriate police officer and countersigned by the arrested person. If the arrested person refuses to sign the written records, the police authorities shall record such refusal and any explanation and append any comments offered by the arrested person orally or in writing. (4) The written records under paragraphs 1 and 2 of the present article shall be made available to the arrested person and his or her defence counsel on their request and in a language that the arrested person understands.

(5) These records shall be preserved by the police for a period of ten years from the time of the official end of the criminal proceedings or the person’s release from detention, whichever is later.