ACT No. XXIII of 2012 AN ACT to amend the Probation Act.

I assent.

G EORGE A BELA

(L.S.)

President

7th December, 2012

ACT No. XXIII of 2012

AN ACT to amend the Probation Act.

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:-

The short title of this Act is the Probation (Amendment) Short title.

Act, 2012 and this Act shall be read and construed as one with the

Probation Act, hereinafter in this Act referred to as "the principal Cap. 446.

Act".

Article 2 of the principal Act shall be amended as follows

Amendment of

article 2 of the

principal Act.

(a) immediately before the definition "combination order"

there shall be added the following new definition

"certificate" means the form, as contained in Annex I to the

Framework Decision, purporting to reproduce details setting out

the information required by the same form;";

(b) the definition of "competent authority" shall be deleted;

(c) the definition "executing State" shall be substituted by the

following new definition

" "executing State" means the Member State to which a

community sanction has been transmitted for the purpose of

execution;";

(d) in the definition "probationer", for the words "combination

order." there shall be substituted the words "combination order;" and

immediately thereafter there shall be inserted the following new

definition

" "scheduled conduct" is a conduct in the list of conduct set

out in the Schedule.".

In sub-article (2) of article 11 of the principal Act,

immediately after the words "to perform unpaid work" there shall be

added "or unpaid work and training, if such would be recommended

in the reports referred to in article 11(3)(a),".

Article 14 of the principal Act shall be amended as

(a) for sub-article (1) thereof, there shall be substituted the

following

"(1) Subject to the provisions of article 11, the work to be

performed under a community service order shall be performed

in the period of not less than one month and not more than two

years beginning on the date of the order

Provided that, on application of the offender or the

Director, and if it appears to the court to be in the interest of

justice, having regard to the circumstances of the case, the court

may extend the period of two years."; and

(b) sub-article (3) thereof shall be deleted.

Article 15 of the principal Act, shall be deleted.

Article 16 of the principal Act, shall be deleted.

Article 17 of the principal Act, shall be deleted.

Article 21 of the principal Act shall be amended as

(a) in sub-article (1) thereof, for the words " with any of the

requirements of the order," there shall be substituted the words "with

any of the requirements of the community sanction,"; and

(b) in sub-article (2) thereof, for the words "any of the

requirements of the community sanction order," there shall be

substituted the words "any of the requirements of the community

sanction".

In the Maltese text of sub-article (2) of article 23 of the Amendment of

principal Act, for the words "jew il-qorti" there shall be substituted article

principal Act.

the words "il-qorti".

Article 26 of the principal Act shall be substituted by the Substitution of

article 26 of the

following new article

principal Act.

(1) The provisions of articles 27 to 34

"Designated

authorities.

shall be limited to the transmission and execution of

judgements imposing community sanctions between

Malta and a Member State of the European Union, and

shall apply to judgements received in Malta after the

16th December, 2008.

(2) For the purposes of articles 26 to 34, both

inclusive

(a)

the Attorney General shall be

competent to receive a judgement imposing a

community sanction issued in the issuing State

and to transmit to the executing State a

judgement imposing a community sanction

issued in Malta by the courts of criminal

jurisdiction;

(b) the courts of criminal jurisdiction

shall be competent to issue a judgement

imposing a community sanction;

(c)

"judgement" shall mean a final

decision or order of a court establishing that a

natural person has committed a criminal offence

and imposing a community sanction.".

11. Article 27 of the principal Act shall be amended as Amendment of

article 27 of the

follows

principal Act.

(a)

sub-article (2) thereof shall be deleted; and

(b) sub-article (1) thereof shall be renumbered as the whole

article and for the words "by the competent authority:" therein, there

shall be substituted the words "by a court of criminal jurisdiction:".

12. Article 28 of the principal Act shall be amended as Amendment of

article 28 of the

follows

principal Act.

(a) in sub-article (1) thereof, for the words "the competent

authority shall," there shall be substituted the words "the court of

criminal jurisdiction shall,"

(b) in the proviso to sub-article (1) thereof, for the words "the

competent authority" there shall be substituted the words "the court of

criminal jurisdiction";

(c) immediately after sub-article (1) thereof, there shall be

added the following new subarticle

"(1A) The court of criminal jurisdiction may, upon the

request of the sentenced person, forward a judgement imposing

a community sanction to the competent authority of a Member

State other than the Member State in which the sentenced

person is lawfully and ordinarily residing, provided that the

latter authority has consented to such forwarding.";

(d) in sub-article (2) thereof, for the words "a certificate, in

such form as may be prescribed by the Minister by regulations made

under this article." there shall be substituted the words "the certificate

which shall be signed and its content certified as accurate by the

Attorney General.";

(e) sub-article (3) thereof shall be substituted by the following

new sub-article

"(3) Once a community sanction has been forwarded to

an executing State under this article and the said State has

informed the court of criminal jurisdiction or the Attorney

General, as the case may be, that it has recognised the

community sanction forwarded, the court of criminal

jurisdiction shall no longer have competence over the

supervision measures imposed in that sanction nor will it be

competent to take decisions referred to in article 31(1) unless

any of the following occurs

(a) the sentenced person absconds or no longer

resides in the executing state; or

(b) new criminal proceedings have been

instituted against the sentenced person before the Maltese

courts.";

(f) in sub-article (4) thereof, for the words "revert to the

competent authority:" there shall be substituted the words "revert to

the court of criminal jurisdiction, as the case may be:"; and

(g) in sub-article (4)(a) thereof, for the words "as soon as the

competent authority has notified" there shall be substituted the words

"as soon as the court of criminal jurisdiction or the Attorney General

upon a request by the said court, has notified".

13. Immediately after article 28 of the principal Act there shall Addition of new

articles to the

be added the following new articles

principal Act.

A judgement transmitted in accordance

with article 28, shall contain

(a)

a statement that the judgement relates

to

(i) conduct which is a scheduled

offence

Provided that in such cases

there shall be no verification whether the

conduct is a criminal offence in Malta; or

(ii) conduct

which

would

constitute an offence under the law of Malta

if it occurred in Malta

Provided that the description

of the offence shall not be regarded as

material if the offence under the law of

Malta and the law of the issuing State are

substantially of the same nature; and

(b) information indicating the nature and

duration of the supervisory measures.

(1) A judgement imposing a community

sanction shall be transmitted with the certificate

containing the information prescribed therein, by any

means capable of producing a written record under

conditions permitting the ascertainment of its

authenticity.

(2) If so required by the executing State, the

original judgement imposing the community sanction

or a certified copy of it, and the original of the

certificate, shall be sent to the executing State.".

14. Article 29 of the principal Act shall be substituted by the

following new article

(1) Where the Attorney General receives

a community sanction in terms of article 26(1)(a), the

Attorney General shall, in his own individual

discretion and subject to the provisions of article 30,

issue a certificate to the effect that the judgement is

one referred to in the Framework Decision and such

certificate shall be conclusive evidence of its contents.

(2) Without the need of any further authority

other than that conferred by this article, the judgement,

together with the certificate referred to in sub-article

(1), shall be transmitted to the court of criminal

jurisdiction for execution in accordance with article

29A.".

15. Immediately after article 29 of the principal Act, as

substituted, there shall be added the following new article

(1) The following provisions shall apply

where a judgement is transmitted to a court of criminal

jurisdiction under article 29(2).

(2) The court of criminal jurisdiction, within

sixty days of receipt of the judgement and the

certificate, shall recognise the judgement as if it were a

sentence made by the said court imposing a

community sanction under this Act.

(3) A copy of the judgement and the certificate

shall be served on the sentenced person.

(4) The judgement shall have the same effect as

a sentence ordering a community sanction, under this

Act, and the provisions of this Act shall mutatis

mutandis apply to the said judgement, so however that

any reference to a community sanction under this Act

shall be construed as a reference to the said judgement.

(5) If, in exceptional circumstances, it is not

possible for the court to comply with the time limit

provided for in sub-article (2), it shall 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.".

16. Article 30 of the principal Act shall be amended as

(a) the current article 30 shall be re-numbered as sub-article

(1) thereof;

(b) in sub-article (1), as renumbered, for the words "Where

Malta is the executing State, the competent authority may refuse to

recognise the community sanctions and assume responsibility for

supervising community sanctions" there shall be substituted the

words "The Attorney General may refuse to recognise the community

sanctions";

(c) in paragraph (a) of sub-article (1), as renumbered, the

words "referred to in article 28(2)" shall be deleted;

(d) paragraph (b) of sub-article (1), as renumbered, shall be

substituted by the following

"(b) if the sentenced person is not resident in Malta and

the sentenced person has returned or wants to return to Malta;";

(e) immediately after paragraph (b) of sub-article (1), as

renumbered, there shall be added the following new paragraphs

"(ba) if the sentenced person is not resident in Malta the

said person requested the community sanction to be forwarded

to Malta without the consent of the Maltese authorities;

(bb) if the community sanction provides for supervisory

measures other than those referred to under article 27;"; and

(f) immediately after sub-article (1), as renumbered, thereof

there shall be added the following new sub-article

"(2) Where the certificate is incomplete or does not

correspond to the community sanction, the Attorney General

may postpone the decision referred to under article 29 until a

reasonable deadline is set for the certificate to be completed or

corrected.".

17. Article 31 of the principal Act shall be amended as Amendment of

article 31 of the

follows

principal Act.

(a) in sub-article (1) thereof for the words "the competent

authority" there shall be substituted the words "the court of criminal

jurisdiction";

(b) in sub-article (2) thereof for the words "the competent

authority" there shall be substituted the words "the court of criminal

jurisdiction";

(c) in sub-article (3) thereof, for the words "Where Malta is

the executing State, the competent authority shall without delay

inform" there shall be substituted the words "The court of criminal

jurisdiction shall without delay request the Attorney General to

inform"; and

(d) in sub-article (4) thereof, for the words "the competent

authority shall" there shall be substituted the words "the Attorney

General, upon a request by the court of criminal jurisdiction, shall";

and the words "set out in article 28(2)" shall be deleted.

18. Article 32 of the principal Act shall be amended as

follows

(a) in sub-article (1) thereof, for the words "the competent

authority may" there shall be substituted the words "the court of

criminal jurisdiction may"; and

(b) in sub-article (2) thereof, for the words "the competent

authority to transfer", whenever they occur, there shall be substituted

the words "the court of criminal jurisdiction to transfer".

19. Article 33 of the principal Act shall be amended as

follows

(a) for the words "Where Malta is the executing State, the

competent authority shall, in accordance 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:"

there shall be substituted the words "The issuing authority shall be

informed, by any means which leaves a written record, of:";

(b) in paragraph (a) thereof, the words "referred to in article

28(2)" shall be deleted; and

(c) in paragraph (b) thereof, the words "referred to in article

28(2)" shall be deleted.

20. Immediately after article 34 of the principal Act there shall

be added the following new article

For the purposes of article 26, the term

"Definition.

"community sanction" shall be deemed to also

include a suspended sentence or a suspended

sentence supervision order within the meaning of

articles 28A and 28G respectively of the Criminal

Code, and a suspended sentence within the meaning

of the Framework Decision.".

21. Immediately after article 37 of the principal Act there shall Addition of

Schedule to the

be added the following new Schedule

principal Act.

"SCHEDULE

(Article 2)

1. Participation in a criminal organisation.

2. Terrorism.

3. Trafficking in human beings.

4. Sexual exploitation of children and child pornography.

5. Illicit trafficking in narcotic drugs and psychotropic

substances.

6. Illicit trafficking in weapons, munitions and explosives.

7. Corruption.

8. Fraud, including that affecting the financial interests of

the European Communities within the meaning of the

Convention of 26 July 1995 on the protection of the

European Communities’ financial interests.

9. Laundering of the proceeds of crime.

10. Counterfeiting currency, including of the euro.

11. Computer-related crime.

12. Environmental crime, including illicit trafficking in

endangered animal species and in endangered plant

species and varieties.

13. Facilitation of unauthorised entry and residence.

14. Murder, grievous bodily injury.

15. Illicit trade in human organs and tissue.

16. Kidnapping, illegal restraint and hostage-taking.

17. Racism and xenophobia.

18. Organised or armed robbery.

19. Illicit trafficking in cultural goods, including antiques and

works of art.

20. Swindling.

21. Racketeering and extortion.

22. Counterfeiting and piracy of products.

23. Forgery of administrative documents and trafficking

therein.

24. Forgery of means of payment.

25. Illicit trafficking in hormonal substances and other growth

promoters.

26. Illicit trafficking in nuclear or radioactive materials.

27. Trafficking in stolen vehicles.

28. Rape.

29. Arson.

30. Crimes within the jurisdiction of the International

Criminal Court.

31. Unlawful seizure of aircraft/ships.

32. Sabotage.".

Passed by the House of Representatives at Sitting No. 531 of the

3rd December, 2012.

M ICHAEL F RENDO

Speaker

R AYMOND S CICLUNA

Clerk to the House of Representatives