A/HRC/33/50/Add.1 14. The Working Group welcomes the change in the Criminal Code introduced in 2014. It emphasizes that the right of access to a lawyer should be further elaborated and defined by law. Particularly, it should include the right to be assisted by a lawyer during police interrogation. The fact that one is able to contact a lawyer should not affect the right to remain silent, contrary to the current practice as described to the Working Group. 15. The Working Group observed that suspects are still kept in detention for lengthy periods before trial. The maximum time of pretrial detention is 12 months for those accused of offences with a maximum sentence of less than four years, 16 months for sentences with a maximum sentence of between four and nine years, and 20 months for sentences with a maximum sentence of nine years or more. These time limits do not apply automatically; detainees can still make a bail application once these periods have been completed. The Working Group is of the view that the law should be more protective of the rights of the accused and put the burden on the prosecution to prove why such a pretrial detention needs to be prolonged and, more importantly, provide for judicial review of any extension. Recommendations in relation to juvenile justice 16. The Working Group recommended in 2009 that the minimum age of criminal responsibility for juveniles be increased to 12 years in accordance with paragraph 32 of general comment No. 10 (2007) of the Committee on the Rights of the Child, that the assumption that a juvenile aged between 9 and 14 years could act with “mischievous discretion” be eliminated, and that the juvenile justice system be extended to children between the ages of 16 and 18 years. 17. During the follow-up visit, authorities expressed their intention to address juvenile criminality with a more social approach instead of a punitive one. On 14 February 2014, the Criminal Code was amended to raise the age of criminal responsibility from 9 to 14 years. According to article 35 (1), substituted by III.2014.2. Cap. 285, “a minor under fourteen years of age shall be exempt from criminal responsibility for any act or omission”. According to Act No. III of 2014, as cited by Justice Services in 2014, the age of criminal responsibility was raised to 14 years. The Working Group welcomes the raising of the age of criminal responsibility from 9 to 14 years. 18. In Maltese law, children are deemed to be capable of “malicious discretion”1 (doli capax) and can be held responsible. The Working Group welcomes the fact that article 36 of the Criminal Code concerning “minors under fourteen but over nine years acting with discretion” has been repealed by Act III.2014.3. It is noted by the Working Group that the Criminal Code provides that minors under the age of 14 will be deemed incapable of formulating the requisite criminal intent. Minors between the ages of 14 and 16 are also exempt from criminal responsibility if they act without mischievous discretion. The Working Group also welcomes the fact that article 37 of the Criminal Code, substituted by III.2014.4., further provides that the penalty will be decreased if the act or omission is committed by a minor who is aged between fourteen and sixteen years of age with mischievous discretion and that, if the minor is aged between sixteen and eighteen years, the applicable penalty shall be decreased by one or two degrees. 19. The Working Group was pleased to learn about amendments made to the Criminal Code regarding the criterion of “mischievous discretion” for children between 14 and 16 years of age, shifting the burden of proof to the prosecution. “Mischievous discretion” should also be proved and not simply assumed. 20. The Working Group remains concerned, however, about the fact that the Juvenile Court can hear matters involving children who are in conflict with the law only if they are __________________ 1 6 It appears to the Working Group that “malicious discretion” is intended to refer to “malicious intent”.