MT
ACT No. XXI of 2011 AN ACT to make provision for granting parole to prisoners and to provide other restorative justice measures at every stage of the criminal justice process and to provide for such matters ancillary or incidental thereto or connected therewith and to make amendments to
Table of Provisions (46)
Statutory Text (46 Articles)
(1)
The short title of this Act is the Restorative Justice
Act, 2011.
(2) 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 purposes or
provisions of this Act.
In this Act, unless the context otherwise requires
Interpretation.
"conflict of interest" means a situation in which any member of
any Board or Committee, established under this Act, has a private or
personal interest sufficient to influence or appear to influence the
objective exercise of his functions;
"Director" means the Director responsible for the Probation
Services;
"Liaison Officer" means the person appointed under article
26(2);
"mediator" means a neutral, qualified and impartial person
appointed to conduct victim-offender mediation proceedings;
"mediation report" means a written report prepared by the
mediator during victim-offender mediation proceedings;
"Minister" means the Minister responsible for the Department
of Correctional Services;
"offender" means a convicted person or a person who has
formally admitted to the commission of a criminal offence in
accordance with article 453 of the Criminal Code, as the case may be; Cap. 9
"Offender Assessment Board" means the Board established
under article 3;
"parole" means the authorisation granted by the Parole Board to
a prisoner serving one or more sentences of imprisonment to be
released on parole, during a part of his term of imprisonment upon
reaching the parole eligibility date, under the supervision of the
parole officer and subject to the parole conditions as may be specified
in the parole licence;
"parolee" means a prisoner who has been granted parole by the
Parole Board and to whom a parole licence has been issued to that
effect;
"Parole Board" means the Board established under article 8;
"Parole Clerk" means the person appointed under article 7;
"parole decision" means a decision taken by the Parole Board to
grant or refuse parole to a prisoner following his application to be
released on parole;
"parole eligibility date" means the date on which a prisoner
becomes eligible to be released on parole subject to the Parole
Board’s decision;
"parole licence" means a licence issued under article 15;
"parole officer" means a person appointed under article 18;
"parole period" means the period specified in the parole licence
during which a parolee is placed under the supervision of a parole
officer by means of a parole licence;
"Parole Unit" means the Unit established under article 5;
"public authority" shall have the same meaning as is assigned to
it in article 2 of the Freedom of Information Act;
"Remission Board" means the Board established under article
"reparation agreement" means the agreement which may be
reached by virtue of article 41;
"Secondary Assessment Report" means the report referred to in
article 4;
"victim" means an identified, natural person who has suffered
physical and, or psychological and, or material damages, directly
caused by the offender’s criminal acts and, or omissions or a
representative of society in the case where a victim cannot be
identified;
"victim-offender mediation" means the procedure established in
Part VI;
"Victim Support Unit" means the Unit established under article
26(1).
PART II
Establishment and Functions of the Offender Assessment Board
(1) There shall be established a Board to be known as
the "Offender Assessment Board" which shall discharge the functions
conferred on it by this Act and such other functions as may be
prescribed by regulations made under this Act, or by or under any
other law
(2) The Offender Assessment Board shall be composed of
(a)
a Chairman who shall be appointed by the Minister;
and
(b) not less than two and not more than four members to
be appointed by the Minister, who shall be accomplished
professionals in related fields, such as Criminal Justice,
Probation and the Social Sciences amongst others.
(3) The members of the Offender Assessment Board shall hold
office for a period of five years and shall be re-eligible for
appointment
Provided that upon the expiration of the abovementioned
period, the members of the Offender Assessment Board shall remain
in office until a new Board shall be appointed.
(4) The Minister shall also appoint substitutes for the
Chairman and the members of the Offender Assessment Board to
serve in cases where either the Chairman or any member of the
Offender Assessment Board abstains or is prevented from acting. In
that case the same conditions as those applicable to the Chairperson
or members of the Board shall apply.
(5) Any member of the Offender Assessment Board having a
direct or indirect personal interest on any matter being discussed by
the Offender Assessment Board shall immediately declare his
position to the Offender Assessment Board.
(6) The member of the Offender Assessment Board who has
declared a conflict of interest shall renounce from taking any part in
discussions relating to the particular case, and a substitute shall
replace him with a view to address that same case.
(1) The
Offender
Assessment
Board
shall
be Functions of the
Offender
responsible for
Assessment
Board.
(a)
carrying out an analysis of the reports prepared in
respect of each prisoner prior to and after sentencing. The
Offender Assessment Board shall also consider previous reports
compiled in connection with previous cases. Reports prepared
after sentencing shall include
(i) a detailed analysis of the problem areas that
may have contributed to the criminal act committed by the
prisoner in question; and
(ii) a care plan, designed by the officials
responsible for proposing various restorative justice
programmes to the prisoner, to undergo, to assist in his
reformation and reintegration. Such care plan shall be
reviewed and updated at regular intervals;
(b) examining the reports and reviewing documented
results related to care plan adherence in relation to each prisoner
who has submitted an application for parole. Subsequently, the
Offender Assessment Board shall draft a report, which shall
include
(i) a risk assessment containing full details of the
potential risk of danger the prisoner in question may pose
upon being released on parole;
(ii) its recommendations to the Parole Board on
whether the prisoner in question ought to be released on
parole and the reasons thereof;
(iii) its recommendations to the Parole Board on
the conditions that ought to be imposed on the prisoner
upon the Parole Board’s decision to grant parole to the
prisoner in question and such recommendations shall be
based on the reports received, in relation to each prisoner
who has submitted an application for release on parole;
(c)
any other function which may be assigned to it by
the Director of Correctional Services, after consultation with the
Minister, from time to time.
(2) The Offender Assessment Board shall forward to the
Parole Clerk all relevant documents referred to in sub-article (1)
which shall then be included in the parole dossier for the purposes of
assisting the Parole Board to take a parole decision.
PART III
Establishment of the Parole Unit
(1) There shall be established a Unit to be known as the
Parole Unit, which shall be headed by the Director, the purpose and
functions of which are assigned by this Act.
(2) Without prejudice to the duties assigned to the Director in
the Probation Act, the Director shall have the following duties
(a)
to assign parole officers to prisoners applying for
parole and to prepare reports regarding the reintegration of
prisoners;
(b)
to assign parole officers to parolees and to prepare
reports;
(c)
to assign mediators for victim-offender mediation
processes;
(d) to manage and direct the Parole Unit and to organise
and supervise parole services;
(e)
to give direction to parole officers;
(f)
to give direction on record keeping and time
management;
(g) to supervise parole officers and periodically receive
verbal or written reports on parolees from the parole officers;
(h)
to keep a register of parolees; and
(i)
such other duties as may be assigned by the Minister
from time to time.
(3) The Director may delegate any of the above duties to a
senior member of staff.
The Minister shall appoint a sufficient number of qualified Appointment of
persons to be parole officers, who shall, under the general direction of parole officers.
the Director, perform the duties prescribed by this Act or such other
duties as may be prescribed by regulations made under this Act, or by
any other law.
(1) There shall be appointed Parole Clerks who shall Parole Clerks.
have sufficient clerical qualifications and administrative experience
to perform the duties pertaining to the post.
(2) The Parole Clerks shall
(a)
act as Parole Clerks to the Parole Board to assist in
the parole process and be responsible to keep contact with the
Director of Correctional Services;
(b) have access to the prisoner’s sentence plan, kept at
the Correctional Facility, to be able to keep a log of the parole
eligibility date of each prisoner eligible for parole;
(c)
make the necessary arrangements to inform each
prisoner who would be eligible for parole, four months before
the parole eligibility date so that if the prisoner wishes, he may
apply to the Parole Board to be considered for parole; and
(d) make the necessary arrangements to compile the
parole dossier which would include all documents listed in
article 13(1); and ensure that the parole dossier shall reach the
Parole Board at least three months before the parole eligibility
date.
(3) The Parole Clerks shall hold office for three years and
shall be reeligible for appointment after the end of each of their
respective term of office.
(4) The Parole Clerks shall be accountable to the Parole Board
in terms of the fulfilment of duties prescribed by the Act.
PART IV
Establishment and Functions of the Parole Board and Parole
Procedure.
(1) There shall be a Board to be known as "the Parole
Board", which shall discharge the functions conferred on it by this
Act and such other functions as may be prescribed by regulations
made under this Act, or by any other law.
(2) The Parole Board shall consist of
(a)
a Chairman who shall be appointed by the Minister,
being a retired member of the judiciary; and
(b) eight other members to be appointed by the Minister
from amongst persons who are involved in the criminal justice
field and, or any other relevant professionals.
(3) The members of the Parole Board shall hold office for a
period of five years and shall be re-eligible for appointment after the
end of their term of office
Provided that upon the expiration of the abovementioned
period, the members of the Parole Board shall remain in office until a
new Parole Board is appointed
Provided further that the Parole Board, in exercise of the
powers assigned to it by or under this Act and any other law, shall not
be subject to the direction or control of any other person or authority.
(4) A member of the Board shall be disqualified in such
circumstances as would disqualify a judge in terms of Sub-Title II of
Title II of Book Third of the Code of Organization and Civil
Procedure; and in such case that member shall be substituted by
another member appointed for the purpose by the Minister.
(5) The Minister shall also appoint a Deputy Chairman, and
substitutes for the members of the Parole Board to serve in cases
where either the Chairman or any member of the Parole Board is
absent, abstains or is prevented from acting. In that case the same
conditions as those applicable to the Chairman and the members of
the Board, as the case may be, shall apply.
(6) Any member of the Parole Board having a direct or
indirect personal interest on any matter being discussed by the Parole
Board shall immediately declare his position to the Parole Board.
(7) The member of the Parole Board who has declared a
conflict of interest shall renounce from taking any part in discussions
relating to the particular case, and a substitute shall replace him with
a view to address that same case.
(1)
The Parole Board’s principal functions shall include: Principal
functions of the
Parole Board.
(a)
evaluating the applications for parole, taking into
consideration victims’ interests;
(b) administering sentences of all prisoners being
considered for parole;
(c)
having exclusive discretion to take a parole decision
and to grant, amend, suspend or revoke, a parole licence issued
under article 15;
(d) imposing the necessary conditions referred to in
article 14, after taking into consideration all the relevant
information contained in the parole dossier;
(e)
making recommendations as may be required in
relation to petitions under article 93 of the Constitution of
Malta;
(f)
liaising with the Offender Assessment Board and the
relevant departments and units, as may be deemed necessary;
(g) issuing certificates of good conduct to mark
successful completion of the prisoner’s parole period; and
(h) any other function as may be prescribed by the
Minister from time to time.
(2) Every case brought before the Parole Board shall be
considered on its own merits.
(3) The Parole Board shall submit a yearly report to the
Minister, which shall include
(a)
the number of prisoners granted or refused parole;
(b) the number of parole licences amended, suspended
and revoked during that year and reasons thereof; and
(c)
any matters effecting the operation of the Parole
Board in the fulfilment of its functions and duties excluding any
administrative issues.
(4) The Minister shall lay a copy of such report on the Table of
the House and present a copy of the same report to the Parliamentary
Social Affairs Committee.
(5) Without prejudice to the preceding sub-article, the Parole
Board, whenever so required by the Minister, shall also submit a
report on any matter in connection with the administration of the
relevant legislation.
(6) The Parole Board shall have access to all records of the
Parole Unit, relating to all prisoners applying for parole, and subject
to the provisions of this Act, the Parole Board shall regulate its own
procedures.
(1) Subject to the provisions of this Act, parole may
only be granted to prisoners serving a sentence of imprisonment of a
term of one year or more, irrespective of whether such term results
from a single sentence or from a number of sentences that amount to
an aggregate of at least one year.
(2) Parole shall also apply with respect to prisoners who have
previously served and concluded a prison sentence.
(3) Notwithstanding the provisions of sub-articles (1) and (2)
prisoners falling under the following categories shall not be eligible
for parole
(a)
prisoners sentenced to a term of imprisonment of
less than one year;
(b)
detainees under the provisions of the Immigration
Act;
(c)
prisoners subject to extradition proceedings;
(d) third-country nationals who are to be deported at the
end of their sentence;
(e)
prisoners who are being detained for subverting or
attempting to subvert the Government of Malta, or conspiring
against the State as stipulated in article 56(1) and (2), and in
Cap 9.
article 57(1) and (2) of the Criminal Code;
(f)
prisoners sentenced for acts of terrorism, funding
terrorism, and ancillary offences as stipulated in article 328A to
article 328M of the Criminal Code; and
Cap 9.
(g)
prisoners sentenced to life imprisonment.
(1) Subject to the provisions of this Act, the parole Parole eligibility
eligibility date of a prisoner serving a sentence of imprisonment for a date.
term of one year and not exceeding two years shall be calculated at
thirty-three per cent of his term of imprisonment.
(2) Subject to the provisions of this Act, the parole eligibility
date of a prisoner serving a sentence of imprisonment for a term of
more than two years and not exceeding seven years of imprisonment
shall be calculated at fifty per cent of his term of imprisonment.
(3) Subject to the provisions of this Act, the parole eligibility
date of a prisoner serving a sentence of imprisonment for a term of
more than seven years of imprisonment shall be calculated at fifty-
eight per cent of his term of imprisonment.
(4) Notwithstanding the provisions of sub-articles (1), (2) and
(3), the Court may include in its judgment an earlier parole eligibility
date in the case of offenders who have not yet attained the age of
sixteen years at the time of the commission of the offence, or the
Court may, taking into consideration the particular circumstances of
the case, deem it to be justifiable that a different date be established in
order for the offender to reform himself better.
(5) Notwithstanding the provisions of sub-article (1), the
parole eligibility date of a person sentenced to more than one
sentence of imprisonment, following the coming into force of this
Act, shall be calculated at fifty per cent of his total term of
imprisonment.
(6) Notwithstanding the provisions of sub-articles (1), (2), (3)
and (4) in cases of breach of prison regulations, the parole eligibility
date may be pushed back accordingly as a disciplinary measure taken
by the Remission Board.
(7) The computation of the terms referred to in sub-articles
(1), (2) and (3) shall be made in accordance with article 22 of the
Criminal Code.
(8) Notwithstanding the provisions of sub-articles (1) to (5),
prisoners eligible for parole may, on the grounds of terminal illness,
apply to the Parole Board to be considered for parole before reaching
the parole eligibility date
Provided that the Parole Board shall first acquire the
prisoner’s authorisation in writing to interview the medical specialist
responsible for the prisoner’s care, regarding the prisoner’s health
condition before the Parole Board may take a decision to grant parole
to the prisoner.
(9) The parole eligibility date shall be calculated exclusively
on the basis of the prison term or aggregate of prison terms of any
relevant court sentences.
(10) The payment or otherwise of court fines shall be taken into
consideration by the Offender Assessment Board, the Parole Board
and the Remission Board in their deliberations.
When a person, who has previously served a sentence of
imprisonment and has been granted parole or remission in accordance
with the provisions of this Act, is convicted of a further offence
committed prior to his having served the previous sentence, and is
certified to be presently free of any dependencies, that person may be
considered for parole upon the commencement of the subsequent
sentence of imprisonment, unless the Court in its judgment has
decided to the contrary
Provided that the Parole Board shall impose on the parolee
in his parole licence the condition to perform community service
work and the relevant provisions of the Probation Act shall mutatis
mutandis apply, together with any other condition the Parole Board
may deem necessary to impose.
(1) Following the prisoner’s application to be
considered for parole, the responsible Parole Clerk shall forward to
the Parole Board the parole dossier which shall include
(a)
the prisoner’s application to be considered for
parole;
(b)
the sentence details of the prisoner;
(c)
other relevant police and, or court records and, or
the Attorney General’s advice particularly in cases when the
prisoner in question has other pending cases;
(d) the report from the Parole Unit as provided for in
article 5(2)(a)
Provided that the information for onward
transmission to the victim or victims of crime shall consist of
the month of discharge of the prospective parolee, the length of
time he would be subject to the Parole Licence, and details
about the general area of release as the case may be;
(e)
the Offender Assessment Board’s recommendations;
and
(f)
subject to the provisions of the Data Protection Act, Cap. 440.
any other information or reports which the Offender Assessment
Board may deem relevant to include and, or which the Parole
Board may require for the case in question.
(2) The Liaison Officer, appointed under this Act, shall notify
in writing the victim or victims of the prisoner, when applicable, of
the prisoner’s application for parole and shall make his
recommendations to the Parole Board following consultation with the
victim.
(3) Prior to the Parole Board taking a decision as to whether it
shall grant or refuse the prisoner’s application for parole, the Parole
Board
(a)
shall examine all documents provided in the parole
dossier and shall give due consideration to the Offender
Assessments Board’s recommendations which are principally
based on
(i) the voluntary and active participation of the
prisoner in restorative justice programmes available and
recommended during his time in the Correctional Facility;
(ii) the risk of a further offence being committed
should the prisoner be granted parole; and
(iii) any other relevant evidence, including
whether the prisoner in question has registered any
improvement in various areas related to the reform
process;
(b)
shall take into consideration the recommendations
made by the Liaison Officer in relation to the victim and, when
deemed necessary by the Parole Board, interview the victim or
victims of the prisoner applying for parole;
(c)
may, if deemed necessary, interview the prisoner
applying for parole; and
(d) may, if deemed necessary, interview the officials of
the Board of Visitors of the Prisons and, or correctional
facility officials and, or any other person as may be deemed
necessary to be interviewed by the Parole Board.
(4) By not later than three weeks prior to the parole eligibility
date, the Parole Board shall determine whether to grant parole.
(5) By not later than one week from the date when the decision
was taken, the Parole Board shall inform the Parole Clerk who shall
forward a copy of the Parole Board’s decision to
(a)
the Director;
(b)
the Director of Correctional Services;
(c)
the prisoner making the request; and
(d) the Liaison Officer of the Victim Support Unit who
shall then have the responsibility to inform in writing and
explain the Parole Board’s decision to the victim or victims
concerned, as the case may be.
(6) Upon the Parole Board’s refusal to grant parole to the
prisoner, unless the Parole Board has fixed a date, in consideration of
the circumstances of the case, the prisoner shall once again become
eligible to re-apply for parole after the expiration of six months from
the date of the Parole Board’s decision.
(1) When granting parole to a prisoner, the Parole Board
may impose any conditions as may be deemed necessary and such
conditions may include
(a)
the provision of monetary compensation to the
victim which may be deducted from the parolee’s monthly
income and, or any other service the Parole Board shall request
the parolee to provide to the victim, subject to the victim’s
approval;
(b) deprivation of any contact with the victim and, or
the victim’s family members;
(c)
any condition which may be recommended by the
victim to the Parole Board to be imposed on the parolee;
(d)
to undergo an electronic monitoring programme;
(e)
that the parolee undergoes any treatment
programmes as may be specified by the Parole Board;
(f)
the participation of the parolee in educational,
vocational and, or training programmes as may be specified by
the Parole Board;
(g)
the performance of community service work;
(h) day time or night time restrictions which may
include the parolee’s obligation to return to the Correctional
Facility during specified days of the week or specified hours of
the day as the Parole Board may deem necessary;
(i)
the obligation to reside within a designated area and
not leave such designated area without the Parole Board’s
explicit approval; and
(j)
any other conditions which the Parole Board may
deem fit to impose in the circumstances.
(2) The parolee shall be under such supervision of the parole
officer or parole officers, as established by the Parole Unit,
throughout the parole period. The parolee shall be required to
(a)
meet up with the parole officer in accordance with
such instructions as may be given by the Parole Board from
time to time; and
(b)
comply with the instructions of the parole officer.
(3) All conditions imposed on the parolee may be amended or
revoked or additional conditions may be further specified by the
Parole Board, on its own initiative or following recommendations
made by the victim, the Offender Assessment Board or the parole
officer or parole officers assigned to supervise the parolee at any time
during the parole period.
(4) The Police and, or relevant governmental or non-
governmental organizations may also make their recommendations to
the Parole Board as regards parole conditions that ought to be
imposed.
(5) Notwithstanding recommendations made to the Parole
Board, the Parole Board shall have exclusive competence on the
conditions that shall be imposed on the parolee.
(6) The Parole Clerk shall immediately inform and clearly
explain to the prisoner granted parole, the conditions that are to be
imposed on him and upon his refusal to abide by any of the
abovementioned conditions the Parole Board shall immediately
revoke its decision.
(1) Upon the Parole Board’s decision to grant parole to
the prisoner, the Parole Board shall issue a parole licence which shall
include
(a)
the name and surname and other personal details of
the parolee;
(b)
the date on which the prisoner shall be released on
parole;
(c)
the period during which the parolee shall be on
parole and during which he shall be supervised by the parole
officer or parole officers; and
(d) all conditions which the Parole Board, on its own
accord or following recommendations from the victim, the
police, the Director or any relevant governmental or non-
governmental organizations, shall deem necessary for the
parolee to comply with.
(2) The Parole Clerk shall immediately forward a copy of the
parole licence to
(a)
the parolee;
(b)
the Director;
(c)
the Director, of Correctional Services;
(d)
the Attorney General; and
(e)
the Commissioner of Police;
which parole licence shall be duly signed by the parolee.
(3) The parole licence shall, unless it has been previously
revoked under article 16, remain in force until the expiry of the parole
period specified in the parole licence, that is, the date on which the
parolee’s sentence of imprisonment expires.
(1) The Parole Board may amend, suspend or revoke a Amendment,
parole licence if it is reported to the Parole Board, by the Director or suspension
revocation of
his representative, or any public authority including the parole licence.
Commissioner of Police and the Attorney General that the parolee
(a)
has not complied with any of the parole conditions;
or
(b) presents, to the parole officer or parole officers or
police officials, reasonable suspicion that he might commit a
further crime or
(c)
is charged with committing a further crime.
(2) Upon revocation or suspension of the parole licence, the
parolee shall immediately be returned to the Correctional Facility to
serve the rest of his sentence and will not be re-eligible for parole
during the course of the sentence being served
Provided that whenever the parole licence has been
revoked or suspended in accordance with sub-article (1)(a) and (b),
the provisions of article 12 shall not apply
Provided further that whenever the parole licence has been
revoked or suspended in accordance with sub-article (1)(c), the
parolee shall be eligible for parole in terms of article 11 on serving his
second or subsequent sentence.
(3) The Parole Board may also amend, suspend or revoke a
parole licence if it receives such information that, had it been
received prior to the issuing of the parole licence, the Parole Board
would not have granted parole.
(4) The amendment, suspension or revocation of the parole
licence shall be effective from such date when the Parole Board has
taken its decision to amend, suspend or revoke the parole licence.
(1) The Parole Board, prior to considering whether to Notification of
amend, suspend or revoke the parole licence, may consult the victim amendment,
suspension or
or victims concerned, as the case may be.
revocation of
the parole
licence to victim
The Parole Board, upon taking its decision to and parolee.
(2) (a)
amend, suspend or revoke the parole licence, shall ensure that the
parolee and the victim or victims concerned, as the case may be, be
served with an information notice.
(b) The notice referred to in paragraph (a) shall include
the reasons for such amendment, suspension or revocation of the
parole licence.
(c)
The information notice shall also include the period
of suspension of the parole licence and shall also be duly signed by
the parolee.
Once a parole licence has been issued, the Director shall
assign a parole officer to be responsible for the supervision of a
Provided that more than one parole officer may be
assigned to the same parolee, each dealing with a particular aspect of
the case as the Director may determine.
Subject to the conditions stipulated in the parole licence, it
shall be the duty of the parole officer –
(a)
to supervise, advise and assist the parolee;
(b) to receive feedback from the parolee and from
professionals, as may be deemed necessary;
(c)
to draft a plan, monitor and assist the parolee in
fulfilling the conditions of the parole licence;
(d) to further assist the parolee in understanding the
harm the parolee caused to the victim of crime and society;
(e)
to provide the Parole Board with bi-monthly
progress reports of the parolee;
(f)
to assist the parolee in furthering appropriate social
and educational endeavours;
(g) where necessary, to assist the parolee in finding
suitable employment;
(h) to report immediately to the Parole Board, after a
breach of any of the conditions imposed by the Parole Board,
specified in the parole licence; and
(i)
such other duties as the Minister may prescribe by
regulations or as may be specified by the Director from time to
time.
PART V
Remission
(1) There shall be appointed a Board to be known as Establishment
of the
"the Remission Board," which shall be composed of
Remission
Board.
(a)
a Chairman;
(b)
the Director of Correctional Services; and
(c)
not more than two other members to be appointed by
the Minister.
(2) The Remission Board shall be responsible for deciding on
the awarding, forfeiture and awarding back of remission days
forfeited.
(1) Offenders may be awarded remission of sentence on Remission of
the grounds of performance at work, at training, during educational sentence.
and rehabilitation programmes, adherence to the care plan as
approved by the Offender Assessment Board, and the offenders’
general overall good conduct. The Remission Board shall establish a
system whereby remission days are awarded to each individual
offender according to objective criteria.
(2) Remission shall be earned, forfeited and awarded back in
accordance with this Act, any regulations made under this Act and the
criteria laid down by the Remission Board.
(1) In the case of offenders serving a sentence of Remission.
imprisonment of a term of more than one month, the Remission Board
may award, order the forfeiture and award back remission days
forfeited
Provided that the provisions of this article shall not permit
the reduction of the term of imprisonment to less than thirty-one days.
(2) Remission shall not apply to an offender serving a sentence
of imprisonment for life.
(3) Remission earned shall not exceed one third of the total of
(a)
the term of a sentence of imprisonment as reduced
under article 22 of the Criminal Code; and
(b) any period, during which the accused was kept in
custody prior to conviction, for the offence or offences for
which the offender was imprisoned.
(1) The Remission Board may order the forfeiture of not
more than three-hundred and sixty-five days of remission, whether
earned or prospective, in the case of offenders who escape or attempt
to escape from the Correctional Facility, who cause disturbance
within the Facility or who commit a criminal offence within the
Facility, including being found positive to narcotic testing or in
possession of any illicit substances or objects.
(2) The Remission Board may order the forfeiture of not more
than one-hundred and twenty days of remission, whether earned or
prospective, in the case of offenders infringing prison regulations or
any disciplinary measures, including being found in possession of
substances or objects not permitted by prison regulations.
(3) Offenders who escape or attempt to escape from the
Correctional Facility, who cause disturbance within the facility or
who commit a criminal offence within the facility, including being
found positive to narcotic testing, or in possession of illicit substances
or other substances and, or objects in infringement of relevant prison
regulations, shall not be awarded back any remission days forfeited.
(4) In the case of an offence against discipline committed by
an unconvicted prisoner, a punishment of forfeiture may be awarded
notwithstanding that the prisoner has not, or had not at the time of the
offence, been sentenced.
(5) Offenders infringing prison regulations on three occasions
shall not be awarded back any remission days forfeited.
Offenders awarded remission may be required to fulfil
conditions as may be specified by the Remission Board. Such
conditions may include
(a)
following rehabilitative and, or restorative justice
programmes as may be specified by the Remission Board; and
(b)
conducting community work.
The Director of Correctional Services shall record in an
appropriate register the remission awarded to each offender. Such
record shall be entered in the register at regular intervals of not more
than one month. The Director of Correctional Services, following
consultation with the Remission Board, shall communicate to each
offender at reasonable intervals the amount of remission awarded to
him.
PART VI
Establishment of the Victim Support Unit
(1) There shall be established a Unit within the Establishment
Department of Probation Services to be known as the "Victim Support of
Support Unit.
Unit";
(2) The Head of the Victim Support Unit shall assume the role
of Liaison Officer and the functions of the Liaison Officer may be
delegated to members of staff, as may be deemed necessary.
(1)
The functions of the Victim Support Unit shall Functions of the
Victim Support
include
Unit.
(a)
the establishment of a Victims of Crime Charter, to
be approved by the Minister, to regulate the coordination of
services to satisfy the needs of victims of crime including all the
necessary procedures to be followed;
(b) the provision and management of a victims’ register
in accordance with article 28;
(c)
the drawing up of, in collaboration with the Malta
Mediation Centre, a code of ethics to be followed by mediators
during victim-offender mediation proceedings;
(d) the facilitation of better access to victim-offender
mediation through the publication of information, guidelines
and related documentation;
(e)
the promotion of victim-offender mediation as a
means of reparation for both the victim and the offender at any
stage of the criminal justice process;
(f)
the provision of assistance to the victim in claiming
compensation for injury and other damages sustained through
crime in accordance with the Criminal Injuries Compensation S.L. 9.12
Regulations;
(g) the drawing up and publication of an annual report
on the progress of the Victim Support Unit, which shall include
(i) the number of victim-offender mediation
processes made and the results thereof during that year;
and
(ii) any other matter, which may be deemed
appropriate for inclusion in the report, excluding any
administrative issues.
(h) the collaboration with any victim support voluntary
organisation as the Victim Support Unit may deem necessary;
and
(i)
the performance of such other functions as may be
assigned to the Victim Support Unit by this Act or by any other
law or by any regulations which may, from time to time, be
prescribed by the Minister.
(1) The Liaison Officer shall set up and manage a
Victims’ Register, hereinafter referred to in this Part as "the register"
which shall contain full details of victims of crime.
(2) All contents of the register shall be treated confidentially
and the Liaison Officer shall ensure that no information included in
the register shall be disclosed to any third party, save under a Court
order.
(1) There shall be a Committee to be known as "the
Victim-Offender Mediation Committee" hereinafter referred to in this
Part as "the Committee" which shall discharge the functions
conferred on it by this Act and such other functions as may be
prescribed by regulations made under this Act, or by or under any
other law.
(2) The Committee shall consist of
(a)
a Chairman, who shall be the Director;
(b) two other members with the required expertise in the
field of mediation who shall be appointed by the Minister after
consultation with the Malta Mediation Centre and shall remain
in office for a period of two years and may be eligible for
reappointment in such office for a further period of two years;
and
(c)
another member who shall be appointed by the
Director after consultation with the Director for Correctional
Services and shall remain in office for a period of two years and
may be eligible for reappointment in such office for a further
period of two years.
(3) Any member of the Committee having a direct or indirect
personal interest on any particular matter being discussed by the
Committee shall immediately declare his position to the Committee.
(4) The member of the Committee who has declared a conflict
of interest shall refrain from any discussion on the matter in which he
has declared any conflict of interest.
(5) Any member who abstains or is prevented from acting,
under the provisions of this article, shall be substituted by any
member, to be appointed by the Director.
(1)
The Committee’s principal duties shall include
Duties of the
Committee.
(a)
to determine the victim’s, the offender’s and the
offence’s suitability for victim-offender mediation;
(b) to determine the victim’s and offender’s eligibility
for victim-offender mediation;
(c)
to supervise mediators and periodically receive
verbal or written reports on the victim-offender mediation
processes taking place;
(d) to determine the location where victim-offender
mediation is to take place;
(e)
the responsibility to make recommendations to the
Minister and in consultation with the Malta Mediation Centre
regarding
(i) the drawing up of a list of mediators to assist
in victim offender mediation;
(ii) the drawing up of the criteria for the
appointment of mediators; and
(f)
such other duties that may be assigned to it by the
Minister.
(2) Every case brought before the Committee shall be
considered by the Committee on its own merits.
(3) The Committee shall have access to all records of the
Victim Support Unit and, subject to the provisions of this Act and any
direction by the Minister, the Committee shall regulate its own
procedures.
(1) The Court may, at any stage of criminal Case referral to
proceedings, refer the case to the Committee to determine the victim-offender
mediation.
suitability and eligibility or otherwise for the case to be referred to
victim-offender mediation.
(2) The prosecutor, and, or the advocate of the offender and, or
the probation officer, as the case may be, may also, at any time during
the criminal proceedings request the Court, through an application, to
refer the case to the Committee to determine the suitability and
eligibility or otherwise for the case to be referred to victim-offender
mediation.
(3) If the Court, instead of sentencing the offender to
imprisonment, subjects the offender to any order provided under the
Probation Act, or to a suspended sentence provided under the
Criminal Code, the probation officer or the surveillance officer, as the
case may be, responsible for supervising the offender, may at any
stage during the duration of the probation or operational period,
request the Court, by means of an application, to refer the case to the
Committee to determine the suitability and eligibility or otherwise for
the case to be referred to victim-offender mediation.
(4) The Offender Assessment Board and, or the Parole Board
and, or the Remission Board, as the case may be, may at any post-
sentencing stage refer a case to the Committee to determine the
suitability and eligibility or otherwise for a case to be referred to
victim-offender mediation.
(1) Prior to referring the victim and the offender to
victim-offender mediation, the Committee shall determine the
victim’s and the offender’s eligibility.
(2) An offender is eligible for victim-offender mediation if
(a)
the offender is capable of agreeing to take part in
victim-offender mediation;
(b) the offender agrees voluntarily to take part in
victim-offender mediation; and
(c)
the offender has formally admitted to committing an
offence.
(3) A victim of an offence is eligible for victim-offender
mediation if
(a)
the offence perpetrated against the victim is
committed by an eligible offender;
(b) the victim is capable of agreeing to take part in
victim-offender mediation; and
(c)
the victim agrees voluntarily to take part in victim-
offender mediation.
In deciding whether victim-offender mediation is suitable Suitability of
for an offence, the Committee shall consider, amongst other matters, offence
victim-offender
mediation.
the following
(a) the nature of the offence, including the level of harm
caused by or violence involved in its commission; and
(b) any potential power imbalance between the persons
who are to take part in victim-offender mediation.
In deciding whether victim-offender mediation is suitable Suitability of
for an eligible victim, the Committee shall consider, amongst other victim
victim-offender
matters, the following
mediation.
(a)
the victim’s personal characteristics;
(b) the victim’s motivation to take part in victim-
offender mediation;
(c)
the impact of the offence on the victim; and
(d) the potential psychological effects victim-offender
mediation may have on the victim.
In deciding whether victim-offender mediation is suitable Suitability of
for an eligible offender, the Committee shall consider, amongst other the
victim-offender
matters, the following
mediation.
(a)
the offender’s personal characteristics;
(b) the offender’s motivation to take part in victim-
offender mediation;
(c)
the impact of the offence as perceived by the
offender; and
(d) the extent (if any) of the offender’s contrition or
remorse for the offence.
The Committee shall refer the victim and the offender to Requisites for
victim-offender mediation if all of the following pre-requisites are victim-offender
mediation.
(a)
there is an eligible victim;
(b)
there is an eligible offender; and
(c)
the Committee determines the suitability of the
victim, the offender and the offence for victim-offender
mediation
Provided that upon the Committee’s refusal to refer a case
to victim-offender mediation if any of the abovementioned pre-
requisites have not been satisfied, shall not preclude the possibility
for the case to be referred to victim-offender mediation at a later stage
once all pre-requisites are satisfied.
Upon being assigned to a case, the mediator shall
(a)
make sure to be informed of all the relevant facts of
the case after being provided with all necessary documents by
the Committee;
(b) contact the victim and the offender to fix a date,
time and place for an individual pre-mediation meeting with
each of the parties and to hold a preliminary hearing in relation
to the case, inform them about the victim-offender mediation
process and rules, and their respective rights
Provided that in the case where the offender is in the
Correctional Facility, the mediator shall obtain the necessary
authorization from the Director of Correctional Services to visit
the offender or to hold a meeting with the offender outside the
Correctional Facility;
(c)
make sure that the victim-offender mediation
session shall be based on the relevant facts of the case and on
the needs and wishes of the parties;
(d) help facilitate dialogue in an impartial manner
between the parties;
(e)
respect the dignity and sensitivity of the parties and
ensure that the parties respect each other’s rights and opinions
during the process;
(f)
facilitate the negotiations leading to a reparation
agreement between the parties; and
(g) any other function as the Victim Support Unit, after
consultation with the Committee, may assign from time to time.
There is no obligation on a victim or on an offender to
(a)
take part in the victim-offender mediation process;
and
(b) continue to take part in victim-offender mediation
after commencement of the proceedings.
Victim-offender mediation proceedings shall be resorted to Proceedings.
by the parties in person, without any legal representation
Provided that without prejudice to the confidentiality
provisions herein contained, where a party to the mediation
communicates to the mediator a threat of serious bodily harm or death
to be inflicted on any person or a threat of significant damage to
property and the mediator has reason to believe the party has the
intent and ability to act on the threat, the mediator shall convey such
information to the appropriate authorities or to the person or persons
concerned.
Victim-offender mediation shall be terminated when either Termination of
victim-offender
of the following circumstances occur
mediation.
(a)
the
parties
negotiate
and
sign
a
reparation
agreement;
(b) if in the opinion of the mediator, the parties cannot
reach a reparation agreement; or
(c)
either or both of the parties no longer wish to
continue with the victim-offender mediation proceedings
Provided that victim-offender mediation proceedings shall
not exceed three sessions, unless further sessions are duly authorized
by the Committee.
(1) Successful victim-offender mediation proceedings Reparation
shall result in the negotiation of a reparation agreement between the agreements.
parties.
(2) Reparation agreements may include
(a)
the offender providing compensation for damages
suffered by the victim;
(b) the offender providing compensation for non-
pecuniary damages suffered by the victim;
(c)
the offender performing personal work for the
victim;
(d)
the offender performing community work;
(e)
the offender to undertake any relevant rehabilitation
programmes;
(f)
restitution to the victim of any item stolen by the
offender;
(g)
a formal apology by the offender to the victim; or
(h) any other reasonable agreement as may be agreed to
by the parties
Provided that a reasonable reparation agreement
shall be construed as an agreement reached by both the victim
and the offender and which is considered to be objectively and
reasonably justified, in the particular circumstances, by the
mediator and attested by the Committee.
(1) No evidence of anything said or any admission made
for the purpose of, in the course of, or pursuant to victim offender
mediation is admissable in any proceedings, and disclosure of such
evidence shall not and may not be compelled in any proceedings
Provided that disclosure of the content of the agreement
resulting from mediation shall be permitted, subject to the consent of
the parties concerned
Provided further that any other information acquired by the
mediator during mediation proceedings may be disclosed whenever
(a)
the mediator considers that this is necessary for
overriding considerations of public policy or national security;
or
(b) such information concerns any threat to commit a
criminal offence; or
(c)
the mediator considers that a criminal offence is
likely to be committed.
(2) All communications or settlement discussions by and
between participants in the course of mediation shall remain
confidential
Provided that information falling within the scope of the
second proviso of sub-article (1) may be communicated to the
authorities or persons concerned.
(3) Except as required under sub-article (4), a mediator may
not submit to any court or adjudicatory body any evidence, report,
assessment, evaluation, or finding of any kind concerning a mediation
conducted by him other than a report that is mandated by the Court or
adjudicatory body, and which only states whether an agreement was
reached.
(4) A mediator may only divulge such information as
established under sub-article (3) to a Court or adjudicatory body as
long as all parties to the mediation expressly agree in writing.
(1) The mediators shall inform the Court, the Offender Mediators to
Assessment Board, the Parole Board or the Director whenever an inform
Court, the
agreement has been reached by the parties, whenever the parties have Offender
Assessment
failed to reach an agreement, or where mediation sessions had to be Board, the
Parole Board or
interrupted for any other reason.
the Director.
(2) Whenever an agreement is reached, the mediator shall be
responsible to forward a written copy of the reparation agreement to
the entity that referred the case to victim-offender mediation
whenever the parties give their consent to such disclosure.
(3) Outcomes of victim-offender mediation proceedings
during the pre-sentencing stage shall be taken into consideration by
the Court when passing judgement
Provided that, upon the parties having reached a reparation
agreement, nothing shall prevent the Court from prescribing any other
punishment on the offender which it may deem appropriate
Provided further that participation of the offender in
mediation shall not be used as evidence of admission of guilt by the
offender.
PART VII
Miscellaneous
The Minister may make regulations
Regulations.
(a)
providing for the duties of the Director in addition to
those prescribed by this Act;
(b) providing for any duties of parole officers in
addition to those prescribed by this Act;
(c)
providing for any duties of all the Boards and the
Committee established under this Act in addition to those
prescribed by this Act;
(d) providing for any duties of the Parole Clerk in
addition to those prescribed by this Act;
(e)
providing for the conditions that shall be imposed in
a parole licence in addition to those prescribed by this Act;
(f)
providing for the manner in which and the
conditions under which a remission of a portion of the
sentence may be earned by industry, good conduct and
adherence to the care plan;
(g) prescribing standard operational procedures in
consultation with the Director for any of the functions stipulated
under this Act or any of the functions that may be added from
time to time; and
(h) generally for the better carrying out of the purposes
and provisions of this Act.
Sub-article (3) of article 11 of the Criminal Code shall be
substituted by the following
"(3) In default of payment of a fine (multa) within the
period prescribed in article 14, such fine (multa) shall be
converted into imprisonment at the rate of one day for every
thirty-five euro (35) or part thereof
Provided that in no case (save as provided in article
17(g) and in article 29(1)) shall imprisonment in substitution of
a fine (multa) exceed six months if the fine is not higher than
seven thousand euro (7,000), one year if the fine is not higher
than thirty thousand euro (30,000), eighteen months if the fine is
not higher than eighty thousand euro (80,000) and two years if it
is higher than eighty thousand euro (80,000).".
In subarticle (1) of article 586 of the Criminal Code, for
the words "accused or the surety," there shall be substituted the words
"accused or the surety:" and immediately thereafter there shall be
added the following new proviso
"Provided that in no case shall detention for non-payment
of the sum in which a person has bound himself exceed six
months if the amount is not higher than seven thousand euro
(7,000), one year if the amount is not higher than thirty
thousand euro (30,000), eighteen months if the amount is not
higher than eighty thousand euro (80,000) and two years if it is
higher than eighty thousand euro (80,000).".
Passed by the House of Representatives at Sitting No. 416 of the
29th November, 2011.
M ICHAEL F RENDO
Speaker
P AULINE A BELA
Clerk to the House of Representatives