ACT No. XX of 2005 AN ACT to make special provision for domestic violence and to make consequential and other amendments to the Criminal and Civil Codes BE IT ENACTED by the President, by and with the advice and

I assent.

E DWARD F ENECH A DAMI

(L.S.)

President

16th December, 2005

ACT No. XX of 2005

AN ACT to make special provision for domestic violence and to

make consequential and other amendments to the Criminal and Civil

Codes

BE IT ENACTED by the President, by and with the advice and

consent of the House of Representatives, in this present Parliament

assembled, and by the authority of the same as follows>

PART I

Introductory and Definitions

(1) The title of this Act is the Domestic Violence Act, 2005.

(2) The provisions of this Act shall come into force on such

date as the Minister responsible for justice may by notice in the Gazette

appoint, and different dates may be so appointed for different provisions

and for different purposes of this Act.

In this Act, unless the context otherwise requires>

“the Commission” means the Commission established by

article 3 of this Act<

“domestic violence” means any act of violence, even if only

verbal, perpetrated by a household member upon another household

member and includes any omission which causes physical or moral

harm to the other<

“household member” includes>

(i)

persons married or formerly married to each

other<

(ii)

persons living in the same household as the

offender or who had lived with the offender within a period

of one year preceding the offence<

(iii) persons whose marriage has been dissolved or

declared null<

(iv)

parents and their children<

(v)

other adults sharing the same household<

(vi)

persons who are, or have been, formally or

informally engaged with a view to get married<

(vii) persons who are related to each other either by

consanguinity or affinity up to the third degree inclusively<

(viii) persons having or having had a child in common<

(ix) the child conceived but yet unborn of any one of

the persons mentioned in paragraphs (i) to (viii), both

inclusive<

“the Minister” means the Minister responsible for social

policy.

PART II

Commission on Domestic Violence

(1) There shall be a Commission to be known as the Establishment of

the Commission.

Commission on Domestic Violence which shall be composed of a

Chairman and not less than four other members appointed by the Minister

after consulting such public and private agencies or entities involved in

the research, prevention and treatment of domestic violence as the

Minister may deem appropriate. A member of the Commission may be

re-appointed on the expiration of his term of office.

(2) A person shall not be qualified to hold office as a member

of the Commission if he is a Minister, Parliamentary Secretary, a member

of or a candidate for election to the House of Representatives, or a

member of a local government authority.

(3) Subject to the provisions of this article, the office of a

member of the Commission shall become vacant>

(a) at the expiration of three years from the date of

appointment or at such earlier time as may be specified in the

instrument by which he was appointed< or

(b) upon resignation by a letter addressed to the Minister<

(c) if any circumstances arise that, if he were not a member

of the Commission, would cause him to be disqualified for

appointment as such.

(4) A member of the Commission may, at any time, be

removed by the Minister after consultation with the other members of

the Commission and substituted by another member.

The Commission shall have the function of advising the

Minister on all aspects of domestic violence and in particular on>

(a) increasing the awareness and understanding of domestic

violence and harassment and their consequences and on ways and

means to reduce their incidence<

(b) areas of domestic violence on which research is necessary

or desirable<

(c) strategies to expose domestic violence and to facilitate

the intervention of public and private agencies and entities with

respect to victims and perpetrators of such violence<

(d) educating the public on all aspects of domestic violence<

(e) ways to facilitate communication between public and

private agencies and entities involved in action against domestic

violence<

(f) standards for care facilities for victims and perpetrators

of domestic violence, including public or private shelter services

or facilities<

(g) standards and protocols for practitioners<

(h) procedures for the effective co-ordination on a national

level of the activities of public and private agencies and entities

engaged in the giving of services on domestic violence issues

including support services<

(i) a comprehensive and co-ordinated plan for the collection

of data concerning domestic violence for use by the courts,

prosecutors, law enforcement officers, health care practitioners,

social workers and other agencies and entities in a manner that

protects the identity of victims of domestic violence<

(j) developing a comprehensive plan for a multi disciplinary

approach of active prevention and early intervention<

(k) specialized training for professional groups involved< and

(l) consulting and networking with other relevant national

and international entities.

(1) The Commission shall meet within one month from its Meetings.

constitution and as often as may be necessary or expedient thereafter.

(2) The meetings of the Commission shall be called by the

Chairman on his own initiative or at the request of any two of the other

members of the Commission.

(3) The Commission shall not act unless a quorum consisting

of the Chairman and not less than two other members is present.

(4) The decisions of the Commission shall be adopted by a

simple majority of the votes of the members present and in the event of

an equality of votes the Chairman shall have and exercise a second or

casting vote.

(5) Any vacancy among the members of the Commission

shall not invalidate the proceedings of the Commission.

(6) Subject to the provisions of this Act, the Commission

may regulate its own procedure.

(1) By the end of March of the year immediately following Reports.

the year of its constitution, the Commission shall publish a report of all

its activities and shall continue to draw up such a report by the end of

March of every year thereafter. A copy of the report shall be sent to the

Minister who shall, by not later than four weeks after receipt of the

report, lay a copy thereof on the Table of the House so however that if

the House is not in session, then such report shall be laid by not later

than four weeks after the House resumes its session.

(2) The report mentioned in subarticle (1) of this article shall,

within the period of eight weeks from the date on which a copy thereof

is laid on the Table of the House, be discussed by the Social Affairs

Committee of the House of Representatives or any other committee

substituting the same.

The Minister may, whenever the Commission so requests,

appoint a person or designate a public officer to assist it, in a consultative

capacity, for the purpose of exercising any of its functions under this

Act.

(1) There shall be a Secretary to the Commission who shall

be a person appointed as such by the Minister or a public officer

designated by the Minister to perform the functions of Secretary.

(2) The Commission shall also have such other staff as the

Minister may deem necessary and appoint or designate as aforesaid.

PART III

Designated Agency

(1) The Minister shall designate one or more organisations,

institutions or other bodies with which arrangements have been made

as provided in sub-article (2) as the agency responsible for the provision

of preventive, therapeutic and, or treatment programmes for victims

and perpetrators of domestic violence.

(2) The Minister shall assign those services to be provided

by the designated organisation, institution or other body.

(3) The arrangements referred to in sub-article (1) shall lay

down the services which the organisation, institution or other body will

be expected to provide for the duration of the arrangements and which

shall include the following>

(a) preventive, therapeutic and, or treatment programmes

for victims and perpetrators of domestic violence<

(b) public help-line facilities for emergency access to

specialised support services in those areas related to domestic

violence<

(c) expertise for the assessment of the needs of victims of

domestic violence, including the development of a care plan for

each referral<

(d) sheltered accommodation for victims of domestic

violence, including in partnership with other organisations,

institutions or other bodies providing similar accommodation<

(e) the compilation and dissemination to interested persons

and bodies of documentation on the rights of victims of domestic

violence and on the remedies and services available to them<

(f) the collation of data concerning domestic violence for

use by the Courts, prosecutors, law enforcement officers, health

care practitioners, social workers and other agencies and entities,

in a manner that protects the identity of victims of domestic

violence.

(4) (a) The arrangements referred to in sub-article (1) shall

also provide for funding by the Minister of the services agreed upon

with the organisation, institution or other body.

(b) The designated agency shall keep the funds referred to

in paragraph (a) separately from the other funds of the agency, which

shall keep proper books of account thereof audited by auditors appointed

by it with the concurrence of the Minister and which shall moreover be

subject to audit by the Auditor General.

(5) The designated agency shall, by not later than three

months after the close of each financial year, transmit to the Minister>

(a) a copy of the annual accounts certified by the auditors<

(b) a report on the operations of the agency during the year.

(6) The report referred to in sub-article (5) (b) shall be laid

on the Table of the House by the Minister by not later than six weeks

after its receipt, or where the House is during the period not in session

by not later than the second week after the House resumes its sittings,

and this report shall, within the period of eight weeks from the date on

which a copy thereof is laid on the Table of the House, be discussed by

the Social Affairs Committee of the House of Representatives or any

other committee substituting the same.

(7) Any member, officer, employee or member of staff of a

designated agency shall be deemed a public officer for the purposes of

article 92 of the Criminal Code.

PART IV

Amendments to the Criminal Code, Cap.9

In article 87(1)(g) of the Criminal Code, hereinafter in this

Part referred to as “the principal law”, for the words “that person’s

sex.” there shall be substituted the words “that person’s sex<” and

immediately thereafter there shall be inserted the following new

paragraph>

“(h) if the crime is committed on the person of the father,

mother or on any person mentioned in paragraph (h) of article

202.”.

In article 202 of the principal law, immediately after

paragraph (g) thereof there shall be inserted the following two new

paragraphs>

“(h) when the crime is committed on the person of>

(i)

the spouse< or

(ii)

the brother or sister< or

(iii)

a natural ascendant or descendant< or

(iv)

another person having or having had a child in

common with the offender< or

(v)

another person living in the same household as

the offender or who had lived with the offender within a period

of one year preceding the offence< or

(vi)

another person who is or had been formally or

informally engaged with a view to get married< or

(vii) other persons who are related to each other by

consanguinity or affinity up to the third degree inclusively>

Provided that in this paragraph “spouse” includes the person

whose marriage with the offender has been dissolved or declared

null<

(i) when the crime is committed in the presence of, or within

hearing distance of a minor.”.

In sub-article (4) of article 221 of the principal law, for the Amendment

article 221 of

words “mentioned in article 222 (1) (b).” there shall be substituted the the principal law.

words “mentioned in article 222 (1) (a) and (b).”.

In paragraph (a) of sub-article (1) of article 222 of the Amendment of

article 222 of

principal law, for the words “natural father or mother<” there shall be the principal law.

substituted the words “natural father or mother, or on any person

mentioned in sub-article (h) of article 202<”.

For the Sub-title immediately before article 249 of the Substitution of

Sub-title IX

principal law, there shall be substituted the following>

of

Title VIII of the

principal law.

“OF THREATS, PRIVATE VIOLENCE AND HARASSMENT”

Immediately after article 251 of the principal law there shall Addition of new

articles 251A, 251B

be inserted the following new articles>

and 251C to the

principal law.

251A. (1)

A person who pursues a course of

“Harassment.

conduct>

(a) which amounts to harassment of another

person, and

(b) which he knows or ought to know amounts to

harassment of such other person,

shall be guilty of an offence under this article.

(2) For the purpose of this article, the person

whose course of conduct is in question ought to know that it

amounts to harassment of another person if a reasonable

person in possession of the same information would think

the course of conduct amounted to harassment of the other

person.

(3) It is a defence for a person charged with an

offence under this article to show that>

(a) his course of conduct was pursued for the

purpose of preventing or detecting crime< or

(b) his course of conduct was pursued under any

enactment, regulation or rule, or to comply with any

condition or requirement imposed by any person under

any enactment< or

(c) in the particular circumstances the pursuit of

the course of conduct was reasonable.

(4) A person guilty of an offence under this article

shall be liable to the punishment of imprisonment for a term

from one to three months or to a fine (multa) of not less than

one thousand liri and not more than two thousand liri, or to

both such fine and imprisonment>

Provided that the punishment shall be increased by one

degree where the offence is committed against any person

mentioned in sub-article (1) of article 222.

Causing others

251B. (1) A person whose course of conduct causes

another to fear that violence will be used against him or his

property or against the person or property of any of his

ascendants, descendants, brothers or sisters or any person

mentioned in sub-article (1) of article 222 shall be guilty of

an offence if he knows or ought to know that his course of

conduct will cause the other so to fear on each of those

occasions, and shall be liable to the punishment of

imprisonment for a term from three to six months or to a fine

(multa) of not less than two thousand liri and not more than

five thousand liri, or to both such fine and imprisonment.

(2) For the purpose of this article, the person

whose course of conduct is in question ought to know that it

will cause another person to fear that violence will be used

against him on any occasion if a reasonable person in

possession of the same information would think the course

of conduct would cause the other so to fear on that occasion.

(3) It is a defence for a person charged with an

offence under this article to show that>

(a) his course of conduct was pursued in the

circumstances mentioned in paragraphs (a) or (b) of sub-

article (3) of article 251A< or

(b) the pursuit of his course of conduct was

reasonable for the protection of himself or another or

for the protection of his or another’s property.

251C. In the articles 251A and 251B hereof references

Interpretation

of articles 251

to harassing a person include alarming the person or causing

251B. the person distress.”.

In article 331 of the principal law, for the words “no criminal Amendment

article 331 of

action shall lie” there shall be substituted the words “no criminal the principal law.

proceedings may be instituted except on the complaint of the injured

party”, and immediately after the words “of the person” there shall be

inserted the words “or with a threat to kill or to inflict bodily harm.”.

Immediately after article 382 of the principal law there shall Addition of new

article 382A to

be added the following new article>

the principal law.

“Restraining

382A. (1) Without prejudice to its powers under the

provisions of the following articles of this Sub-title, where

the court considers it expedient to do so for any of the purposes

mentioned in sub-article (1) of article 412C, it may, in passing

judgment against the accused, together with any punishment

to which it may sentence the offender, make an order

(hereinafter referred to as a “restraining order”) which may

give effect to any thing provided in sub-article (3) of the said

article 412C.

(2) A restraining order shall remain in force for

such period, not exceeding three years, as specified by the

court which may order that such period shall commence to

run from the date of expiration or remission of the punishment.

The provisions of Sub-article (6) of article 412C shall mutatis

mutandis also apply to a restraining order.

(3) If without reasonable excuse the offender

contravenes any prohibition or restriction imposed upon him

by an order under this article, he shall be guilty of an offence

and shall, on conviction, be liable to a fine (multa) of one

thousand Malta liri or to imprisonment not exceeding six

months or to both such fine and imprisonment.”.

In subarticle (2) of article 383 of the principal law, for the Amendment of

article 383 of

words “five liri” there shall be substituted “fifty liri” and for the words the principal law.

“one hundred liri” there shall be substituted the words “one thousand

Immediately after article 412B of the principal law there shall Addition of new

articles 412C and

be added the following new article>

412D to the

principal law.

412C. (1) Where a person (hereinafter in this article

and in article 412D referred to as “the accused”) has been

charged or accused with an offence before the Court of

Magistrates whether as a court of inquiry or as a court of

criminal judicature, the court may, on reasonable grounds,

for the purpose of providing for the safety of the injured person

or of other individuals or for the keeping of the public peace

or for the purpose of protecting the injured person or other

individuals from harassment or other conduct which will cause

a fear of violence, issue a protection order against the accused.

(2) A protection order may impose any

restrictions or prohibitions on the accused that appear to the

court necessary or desirable in the circumstances in order to

give effect to any of the purposes mentioned in sub-article

(1).

(3) Without limiting the nature of the orders which

may be made under sub-article (1), a protection order may do

all or any of the following>

(a) prohibits or restricts the accused from

approaching or following the movements of the injured

person or any other individual specified in the order< or

(b) prohibit or restrict access by the accused, for

a period not exceeding six months or until final

judgement, to premises in which the injured person, or

any other individual specified in the order, lives, works

or frequents even if the accused has a legal interest in

those premises< or

(c) prohibit the accused from contacting or

molesting the injured person or any other individual

specified in the order.

(4) Before making an order, the court shall take

into account>

(a) the need to ensure that the injured person or

other individual specified in the order is protected from

injury or molestation< and

(b) the welfare of any children or any dependants

who may be affected by the order< and

(c) the accommodation needs of all persons who

may be affected by the order, in particular of the injured

person, his children and his other dependants< and

(d) any hardship that may be caused to the accused

or to any other person as a result of making the order<

and

(e) the accused’s willingness or otherwise to

submit to such treatment as the court may deem

appropriate< and

(f) any other matter that, in the circumstances of

the case, the court considers relevant>

Provided that particular attention shall be given to the

matters in paragraphs (a), (b) and (e).

(5) A protection order shall remain in force for a

period, not exceeding three years, specified by the court, but

can be revoked or extended for further periods.

(6) A party to the proceedings in which an order

has been made under this article or any other individual

mentioned in the order, may apply to the court at any time for

the extension, variation or revocation of the order and after

all the parties have had an opportunity to be heard the court

shall, in determining whether to extend, vary or revoke an

order, have regard to the matters specified in sub-article (4).

(7) If without reasonable excuse the accused

contravenes any prohibition or restriction imposed upon him

by an order under this article, he shall be guilty of an offence

and shall, on conviction, be liable to a fine (multa) of one

thousand Malta liri or to imprisonment not exceeding six

months or to both such fine and imprisonment.

(8) The court may also order that any arm proper

or arm improper, as defined in article 64, be deposited with

the Court’s registrar.

412D. (1)

Together with or separately from a

protection order under article 412C, and provided the court is

satisfied that proper arrangements have been made or can be

made for treatment, the court may make an order (hereinafter

in this article referred to as a “treatment order”) requiring a

person to submit to treatment subject to the conditions which

the court may deem appropriate to lay down in the order>

Provided that where any person is convicted with an

offence, a treatment order by the court may be made with or

without the consent of the convicted person and in the case of

a person accused with an offence, a treatment order may only

be made with the consent of the accused.

(2) The treatment may be of any of the kinds

specified in sub-article (5) of article 7 of the Probation Act.

(3) The provisions of sub-articles (5) and (6) of

article 412C shall apply to an order under this article.

(4) If at any time during the period that the order

is in force it is proved to the satisfaction of the court that the

person has failed to comply with any of the requirements or

conditions of the order, the court may impose on such person

a fine (ammenda) not exceeding five hundred liri.”.

In paragraph (d) of article 543 of the principal law, for the

words “or the community in general.” there shall be substituted the

words “or the community in general<” and immediately thereafter there

shall be inserted the following>

“(e)

in the case of any offence involving domestic

violence>

Provided that for the purposes of this paragraph “domestic

violence” shall have the same meaning assigned to it by article 2

of the Domestic Violence Act>

Provided further that it shall be lawful, after proceedings have

commenced before the court in virtue of this article for an offence

mentioned in this paragraph, for an alleged victim of an offence

involving domestic violence to request the court to stay proceedings

against the alleged perpetrator, and when such a request is made

the court may decide and direct the continuation of proceedings

against the alleged perpetrator, giving particular consideration to

the best interests of any minors involved, and shall cause such

request and decision to be registered in the records of the case.”.

The proviso to article 544 of the principal law shall be

substituted by the following two provisos>

“Provided that where any of such crimes is accompanied with

public violence, domestic violence as defined in article 2 of the

Domestic Violence Act, or with any other offence affecting public

order, criminal action shall be taken independently of the complaint

of the private party>

Provided further that where in the case of a crime accompanied

by domestic violence the criminal action has been taken

independently of the complaint of the private party, the provisions

of the second proviso of article 543(e) shall also apply in such

case.”.

PART V

Amendments to the Civil Code, Cap.16.

For article 37 (2) of the Civil Code, hereinafter in this Part Amendment

article 37 of

referred to as “the principal law”, these shall be substituted with the the Civil Code,

following>

“(2) The application containing the demand referred to in

the proviso to sub-article (1) shall be duly appointed for hearing

by the court and shall be served on the respondent together with

the notice of such hearing>

Provided that where domestic violence is involved, the said

application shall be appointed within four days and the court may,

of its own motion before or after hearing the parties, issue a

protection order under article 412C of the Criminal Code and, or a

treatment order under article 412D of the same Code and the

provisions of those articles shall mutatis mutandis apply to an order

issued under this article as if it were an order issued under the

corresponding article of the said Code>

Provided further that for the purposes of this article and of

article 39, “domestic violence” shall have the same meaning

assigned to it by article 2 of the Domestic Violence Act.”.

Immediately after article 38 of the principal law there shall Amendment of

article 39 of the

be inserted the following article>

principal law.

“Protection

Where a law suit for personal separation has been

filed by either spouse and evidence of acts of domestic

Treatment

Orders in

violence has been produced, the court may, either on an

lawsuit for

application of one of the parties or on its own motion in order

personal

separation.

to protect the safety of the parties involved or in the best

interests of the child or children or of any other minor

dependants of any of the spouses, issue a protection order

under article 412C of the Criminal Code and, or a treatment

order under article 412D of the same Code and the provisions

of those articles shall mutatis mutandis apply to an order issued

under this article as if it were an order issued under the

corresponding article of the said Code.”.

Passed by the House of Representatives at Sitting No. 335 of 7th December,

2005. A NTON T ABONE

Speaker

R ICHARD J. C AUCHI

Clerk to the House of Representatives

Mitbug[ fl-Istamperija tal-Gvern — Printed at the Government Printing Press