ACT No. VI of 2010 AN ACT to amend the Probation Act, Cap. 446.

I assent.

G EORGE A BELA

(L.S.)

President

15th June, 2010

ACT No. VI of 2010

AN ACT to amend the Probation Act, Cap. 446.

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

(1) The short title of this Act is the Probation

(Amendment) Act, 2010, and this Act shall be read and construed as

one with the Probation Act, hereinafter referred to as "the principal

Act".

(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, establish, and different dates may be so established for

different provisions and for different purposes of this Act.

Article 2 of the principal Act shall be amended as follows

(a)

immediately after the definition "community service

order", there shall be inserted the following new definition

" "competent authority" means the competent

authority of Malta established under article 26;";

(b) immediately after the definition "Director", there

shall be inserted the following new definitions

" "executing State" means the Member State in

which the community sanctions are supervised following a

decision in accordance with Article 8 of the Council

Framework Decision 2008/947/JHA of 27 November 2008

as amended by Council Framework Decision 2009/299/

JHA of 26 February 2009;

"Framework Decision" means Council Framework

Decision 2008/947/JHA of 27 November 2008 as amended

by Council Framework Decision 2009/299/JHA of 26

February 2009 on the application of the principal of mutual

recognition to judgments and probation decisions with a

view to the supervision of probation measures and

alternative sanctions;"; and

(c)

immediately after the definition "institution", there

shall be inserted the following new definition

" "issuing State" means the Member State in which

the judgment is delivered;".

Paragraph (h) of subarticle (2) of article 3 of the principal Amendment of

article 3 of the

Act shall be substituted by the following

principal Act.

"(h) to assign probation officers to probationers, to

supervise provisional orders of supervision and to prepare pre-

sentencing reports in accordance with this Act.".

Article 7 of the principal Act shall be amended as follows

Amendment of

article 7 of the

principal Act.

(a)

in subarticle (2) thereof, immediately after the first

proviso there shall be added the following new proviso

"Provided further that where a probation order

which has been made is of a period of less than one year,

that order shall be deemed to be of one year.";

(b) in the last proviso of subarticle (2) thereof,

immediately after the word "provided" there shall be added the

word "further"; and

(c) in subarticle (8) thereof, for the words "The court by

which a probation order is made shall forthwith give copies of

the order to the probationer, to the Director" there shall be

substituted the words "The court by which a probation order is

made shall order that copies of the order be served forthwith on

the probationer and the Director".

Article 11 of the principal Act shall be amended as

follows

(a)

in subarticle (2) thereof, for the words "or more than

two hundred and forty hours" there shall be substituted the

words "or more than four hundred and eighty hours"; and

(b) in paragraph (a) of subarticle (3) thereof, for the

words "to perform work under such an order;", there shall be

substituted the words "to perform work under such an order:";

and immediately thereafter there shall be added the following

new proviso

"Provided that where the court is so satisfied, it

may, after considering the offender’s circumstances,

dispense from the need of a written pre-sentencing report

and order that a verbal report be submitted, and such verbal

report shall be duly recorded in the court’s proceedings.".

In subarticle (1) of article 14 of the principal Act, for the

words "of not less than three months and not more than one year"

there shall be substituted the words "of not less than one month and

not more than two years".

Immediately after article 20 of the principal Act there shall

be added the following new article

" Community

A court, on making a community

sanction.

sanction, may subject an offender, in respect

of whom the community sanction is in force,

to the limitations on leaving Malta as the

court may deem fit.".

8. Subarticle (1) of article 21 of the principal Act shall be

substituted by the following

"(1) If at any time during the probation period it appears

to the Criminal Court that the probationer has failed to comply

with any of the requirements of the order, the court may issue a

summons requiring the probationer to appear before such court

at the place and time specified therein, or may, if the

circumstances so require, issue a warrant for the probationer’s

arrest

Provided that except where the alleged failure is brought to

the attention of the court by means of an application by the

probation officer, no such summons or warrant shall be issued

by the Criminal Court, or by the Juvenile Court, except on an

information in writing and confirmed on oath. In either case the

information must be filed within three months of the alleged

failure by the probationer

Provided further that the Court shall appoint for hearing

the application within twenty days of the filing of the said

application.".

9. Articles 26, 27 and 28 of the principal Act shall be Re-numbering

of articles 26, 27

renumbered as articles 35, 36 and 37, respectively.

and 28 of the

principal Act.

10. Immediately after article 25 of the principal Act, there Addition of new

articles 26 to 34

shall be inserted the following new articles

to the principal

Act.

" Designation of

There shall be a competent

competent

authority, to be designated by order of the

authority in

Minister, whose functions shall be the taking

accordance with

Framework

of decisions relating to community sanctions,

Decision.

in particular, in case of non-compliance with

community sanctions or if the sentenced

person commits a new criminal offence, in

accordance with article 31(1), where Malta is

either the issuing or executing State for the

purposes of the mutual recognition of the

community sanctions between Member

States.

(1)

In accordance with the

Types of

community

Framework

Decision,

the

following

sanctions.

community sanctions shall be regulated by

the competent authority

(a)

an obligation for the

sentenced person to inform a specific

authority of any change of residence or

working place;

(b) an obligation not to enter

certain localities, places or defined

areas in the issuing or executing State;

(c)

an obligation containing

limitations on leaving the territory of

the executing State;

(d) instructions relating to

behaviour, residence, education and

training, leisure activities, or containing

limitations on or modalities of carrying

out a professional activity;

(e)

an obligation to report at

specified times to a specific authority;

(f)

an obligation to avoid

contact with specific persons;

(g) an obligation to avoid

contact with specific objects, which

have been used or are likely to be used

by the sentenced person with a view to

committing a criminal offence;

(h) an obligation to compensate

financially for the prejudice caused by

the offence and, or an obligation to

provide proof of compliance with such

an obligation;

(i)

an obligation to carry out

community service;

(j)

an obligation to cooperate

with a probation officer, and if

necessary with a representative of a

social service having responsibilities in

respect of sentenced persons; and

(k) an obligation to undergo

therapeutic treatment or treatment for

addiction.

(2)

The competent authority shall

notify the General Secretariat of the Council

of the European Union, when implementing

the Framework Decision, which community

sanctions, apart from those referred to in

subarticle (1), it is prepared to supervise. The

General Secretariat of the Council shall make

the information received available to all

Member States and to the Commission.

(1)

Where Malta is the issuing

Forwarding of

community

State, the competent authority shall, on its

sanctions to

competent

own initiative, or upon the request of the

authorities of

sentenced person, forward a community

member states

where Malta is

sanction to the competent authority of the

the issuing State.

Member State in which the sentenced person

is lawfully and ordinarily residing, in cases

where the sentenced person has returned or

wants to return to that State

Provided that the competent

authority shall only consent to the forwarding

of a community sanction, upon the request of

the sentenced person, where the sentenced

person has not committed subsequent

offences and under such conditions it may

deem fit to impose.

(2)

When, in applying the provisions

of subarticle (1), the competent authority

forwards a community sanction to the

executing State, it shall ensure that it is

accompanied by a certificate, in such form as

may be prescribed by the Minister by

regulations made under this article.

(3)

Once the competent authority of

the executing State has recognised the

community sanction forwarded to it and has

informed the competent authority of such

recognition, the competent authority in Malta

shall no longer have competence in relation

to the supervision of the community sanction

imposed, nor to take any subsequent

decisions referred to in article 31(1).

(4)

The competence referred to in

subarticle (3) shall revert to the competent

authority

(a)

as soon as the competent

authority has notified the competent

authority of the executing State about

the withdrawal of the certificate

referred to in subarticle (2), provided

that supervision in the executing State

has not yet begun;

(b) in cases or categories of

cases to be specified by the executing

State where it may refuse to assume the

responsibility of supervision, in

particular

(i)

in cases relating to

an alternative sanction, where the

judgement does not contain a

custodial sentence or measure

involving the deprivation of

liberty to be enforced in case of

non-compliance

with

the

obligations

or

instructions

concerned;

(ii)

in cases relating to

a conditional discharge; and

(iii) in cases where the

judgement relates to acts which do

not constitute an offence under the

law of the executing State,

whatever its constituent elements

or however it is described;

(c)

in

cases

where

the

jurisdiction of the executing State has

ended in accordance with the provisions

of article 32.

(1)

Where

Malta

is

the

Recognition of

community

executing State, the competent authority shall

sanctions where

Malta is the

within sixty days of receipt of the community

executing State.

sanction, recognise the community sanction

forwarded, and follow the necessary

procedure referred to in article 28(2), and

shall without delay take all necessary

measures for the supervision of the

community sanction, unless it decides to

refuse recognition and supervision on the

grounds referred to in article 30

Provided that when, in exceptional

circumstances, it is not possible for the

competent authority to comply with the time

limit provided for in subarticle (1), it shall

immediately inform the competent authority

of the issuing State by any means, giving the

reasons for the delay and indicating the

estimated time needed for the final decision

to be taken.

(2)

Where Malta is the executing State,

the competent authority may postpone the

decision on recognition of the community

sanction in the situation where the certificate

referred to in article 28(2) is incomplete or

does not correspond to the community

sanction, until a reasonable deadline is set for

the certificate to be completed or corrected.

Where Malta is the executing State,

Grounds for

refusing

the competent authority may refuse to

recognition and

supervision.

recognise the community sanctions and

assume responsibility for supervising

community sanctions on the following

grounds, in accordance with Article 11 of the

Framework Decision

(a)

the certificate referred to in

article 28(2) is incomplete or

manifestly does not correspond to the

community sanction and has not been

completed or corrected within a

reasonable period set by the competent

authority;

(b) the criteria set out in article

28(1) are not satisfied;

(c)

the recognition of the

community sanction and assumption of

the responsibility for supervising

community sanctions would be contrary

to the principle of ne bis in idem;

(d) the judgment relates to acts

which do not constitute an offence

under the laws of Malta;

(e) the enforcement of the

sentence is barred by prescription

according to the laws of Malta and falls

within its competence according to that

law;

(f)

there is immunity under the

laws of Malta, which makes it

impossible to supervise community

sanctions;

(g) under the laws of Malta, the

sentenced person cannot, owing to his

age, be held criminally liable for the

offences in respect of which the

judgment was issued;

(h) the judgment was rendered

in absentia, unless

(i)

the

certificate

referred to in article 28(2) states

that the person summoned

personally or informed through a

representative

competent

according to the laws of Malta of

the time and place of the

proceedings, or that the person

actually

received

official

information of the scheduled time

and place of the proceedings and

was also informed that a decision

may be handed down if he does

not appear for the proceedings; or

(ii)

the person had

given a mandate to a legal

counsellor, who was either

appointed by the person concerned

or by the State, to appear in his

stead and that legal counsellor in

fact

appeared

during

the

proceedings; or

(iii) the

person

indicated to a competent authority

that he does not intend to contest

the charges against him; or

(iv)

subsequent to the

decision, which would have been

served upon him, the person

concerned, after being informed of

his right to appeal or to a retrial,

expressly stated that he does not

intend to contest the decision or

did not contest such decision

within the applicable time frame;

(i)

the community sanction

provides for medical and, or therapeutic

treatment which Malta is unable to

supervise in view of its legal or

healthcare system;

(j)

the community sanction is

of less than six months’ duration; or

(k) the judgement relates to

criminal offences which under the laws

of Malta are regarded as having been

committed wholly or for a major or

essential part within its territory, or in a

place equivalent to its territory.

(1)

Where

Malta

is

the

Jurisdiction to

take all

executing State, the competent authority shall

subsequent

decisions and

have jurisdiction to take all subsequent

governing law

decisions relating to a community sanction,

where Malta is

the executing

in particular in case of non-compliance with

State.

a community sanction or if the sentenced

person commits a new criminal offence. Such

subsequent decisions may include

(a)

the

modification

of

obligations or instructions contained in

the community sanction or the

modification of the duration of the

community sanction;

(b) the revocation of the

suspension of the execution of the

judgement or the revocation of the

decision regarding a community

sanction; and

(c)

the imposition of a custodial

sentence

or

measure

involving

deprivation of liberty in case of a

community sanction.

(2)

If the nature or duration of the

relevant community sanction is incompatible

with the laws of Malta when Malta is the

executing State, the competent authority may

adapt them in line with the nature and

duration of community sanctions, which

apply under the laws of Malta, to equivalent

offences. The adapted community sanction or

its duration shall correspond as far as

possible to that imposed in the issuing State

Provided

that

where

the

community sanction or the duration of the

community sanction has been adapted

because its duration exceeds the maximum

duration provided for under the laws of

Malta, where Malta is the executing State, the

duration of the adapted community sanction,

shall not be below the maximum duration

provided for equivalent offences under the

laws of Malta

Provided also that the adapted

community sanction shall not be more severe

or longer than the community sanction which

was originally imposed.

(3)

Where Malta is the executing State,

the competent authority shall without delay

inform the competent authority of the issuing

State, by any means which leaves a written

record, of all the decisions taken on

(a)

the

modification

of

community sanction;

(b) the revocation of the

suspension of the execution of the

judgement or revocation of the decision

regarding a community sanction;

(c)

the enforcement of a

custodial sentence or measure involving

deprivation of liberty, because of non-

compliance with a community sanction;

(d) the lapse of the community

sanction.

(4)

If so requested by the competent

authority of the issuing State, the competent

authority shall inform it of the maximum

duration of deprivation of liberty that is

foreseen in the national laws of Malta for the

offence which gave rise to the judgment and

that could be imposed on the sentenced

person in case of breach of the community

sanction. This information shall be provided

immediately after receipt of the community

sanction together with the necessary

certificate set out in article 28(2).

(1)

Where

Malta

is

the

End of

jurisdiction of the

executing State, if the sentenced person

executing State.

absconds or no longer has a lawful residence

in Malta, the competent authority may

transfer the jurisdiction in respect of the

supervision of all further decisions relating to

the judgement back to the competent

authority of the issuing State.

(2)

If new criminal proceedings

against the person concerned are taking place

in the issuing State, the competent authority

of the issuing State may request the

competent authority to transfer jurisdiction in

respect of the supervision of the community

sanction and in respect of all further

decisions relating to the judgement back to it.

(3)

When, in the application of this

article, jurisdiction is transferred back to the

issuing State, the competent authority of that

State shall resume jurisdiction. For the

further supervision of the community

sanctions, the competent authority of the

issuing State shall take account of the

duration and degree of compliance with the

community sanctions in Malta, as well as of

any decisions taken by Malta in accordance

with article 31(3).

Where Malta is the executing State,

Information from

the executing

the competent authority shall, in accordance

State in all cases.

with Article 18 of the Framework Decision,

without delay inform the competent authority

of the issuing State, by any means which

leaves a written record, of

(a)

the transmission of the

community sanction together with the

certificate referred to in article 28(2) to

the competent authority responsible for

its recognition and for taking the

ensuing measures for the supervision of

the community sanction and where it

has no competence to recognise it and

take the said measures for the

supervision, it shall, ex officio, forward

it to the competent authority of the

issuing State;

(b) the fact that it is in practice

impossible to supervise the community

sanctions for the reason that, after

transmission of the community

sanction, together with the certificate

referred to in article 28(2), to Malta, the

sentenced person cannot be found in the

territory of Malta, in which case Malta

shall be under no obligation to

supervise the community sanction;

(c)

the final decision to

recognise the community sanction and

to assume responsibility for supervising

the community sanction;

(d) any

decision

not

to

recognise the community sanction and

to assume responsibility for supervising

the community sanction in accordance

with article 31(2), together with the

reasons for the decision;

(e)

any decision to adapt

community sanction in accordance with

the provisos to article 31(2), together

with the reasons for the decision;

(f)

any decision on amnesty or

pardon granted by the issuing or

executing State which leads to not

supervising the community sanction,

together, where applicable, with the

reasons for the decision.

Where and whenever it is felt

Consultations

between

appropriate, the competent authority shall

competent

authorities.

consult with the competent authority of

another Member State being the issuing State

or the executing State as the case may be,

with a view to facilitating the smooth and

efficient application of the Framework

Decision.".

Passed by the House of Representatives at Sitting No. 235 of the

9th June, 2010.

M ICHAEL F RENDO

Speaker

P AULINE A BELA

Clerk to the House of Representatives