ACT No. I of 2015 AN ACT to provide for the treatment of persons in possession of small quantities of prohibited drugs for personal use and for other measures for the rehabilitation of persons suffering from drug dependence.

I assent.

M ARIE L OUISE

(L.S.)

C OLEIRO P RECA

President

20th February, 2015

ACT No. I of 2015

AN ACT to provide for the treatment of persons in possession of

small quantities of prohibited drugs for personal use and for other

measures for the rehabilitation of persons suffering from drug

dependence.

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 Drug Dependence

(Treatment not Imprisonment) Act, 2015.

(2) This Act shall come into force on such date as the Minister

may by Order in the Gazette establish and different dates may be

established in respect of different provisions or purposes of this Act.

In this Act, unless the context otherwise requires

"conviction" also includes the voluntary payment of a penalty

without proceedings as provided under this Act or under the

Commissioners for Justice Act;

"drug laws" means the Medical and Kindred Professions

Ordinance and the Dangerous Drugs Ordinance.

"Minister" means the Minister responsible for Justice;

"prohibited drug" means any drug which may form the object of

criminal proceedings under article 120A of the Medical and Kindred

Professions Ordinance or under article 22 of the Dangerous Drugs

Ordinance;

(1) Subject to the provisions of subarticle (2), the Application of

provisions of this Act, including the procedures, measures and this Act.

punishments provided in this Act in respect of offences against the

drug laws, shall apply notwithstanding and to the exclusion of the

provisions of the drug laws. No direction shall be required from the

Attorney General for the purposes of commencement of proceedings

under articles 4 and 5 of this Act.

(2) The drug laws shall continue to apply except in respect of

any matter explicitly provided for in this Act.

(1) Where a charge for breach of the drug laws consists Possession for

of a charge of possession of a prohibited drug in a quantity of less personal

prohibited drug.

than two grams of any drug other than cannabis or three point five

grams of the drug cannabis or two ‘ecstacy’ or two other prohibited

pills, irrespective of purity, in circumstances which do not give rise to

reasonable grounds to believe that the prohibited drug is not for

personal use by the person in possession thereof, that person shall be

tried in accordance with the Commissioners for Justice Act and shall Cap. 291.

be liable, on conviction by the Commissioner for Justice, hereinafter

referred to as "the Commissioner", assigned by the Minister to hear

drug offence cases, to a penalty of between seventy-five euro (€75)

and one hundred and twenty-five euro (€125)

Provided that the Minister may by means of regulations

made by virtue of this Act establish amounts and levels of purity in

respect of different types of prohibited drugs which shall give rise to a

legal presumption that a person found in possession of the said

amounts of prohibited drugs, whether of a specified purity or not, was

in possession of those prohibited drugs for personal use or for

trafficking, as the case may be.

(2) Notwithstanding the provisions of subarticle (1), where the

prohibited drug in respect of which a person is charged according to

subarticle (1) consists of the drug cannabis or of cannabis resin, the

penalty applicable shall be of between fifty euro (€50) and one

hundred euro (€100).

(3) Where, in proceedings commenced before the

Commissioner in terms of subarticles (1) or (2) a question arises as to

whether a substance constitutes a prohibited drug, the Commissioner

shall refer such question to the Drug Offenders Rehabilitation Board

which shall report back on its findings to the Commissioner.

(4) Any prohibited drugs confiscated or exhibited in the

course of proceedings before the Commissioner in terms of

subarticles (1) or (2) shall be sent by the Registrar of the Tribunal to

the Registrar of the Criminal Court for destruction. Due record shall

be kept of such sending.

(5) Where a person charged with an offence as provided for in

subarticles (1) or (2) is a person not habitually resident in Malta any

penalty due in terms of the provisions of the said subarticles shall,

unless the charge is contested, be paid in its minimum through

electronic means and without proceedings before the Commissioner,

at any place and in such manner as may be established by the

Minister. Such payment may only be made through credit card or

other bank transfer within twelve hours from the time when the said

person is notified of the charge during which time the Executive

Police shall have the power to keep the said person in detention until

payment is made

Provided that where a charge to which this subarticle

applies is contested or where no payment of the penalty as provided

above in this subarticle is made, the provisions of this Act shall cease

to apply in respect of the person to be charged and the case shall

proceed in accordance with the provisions of the drug laws.

For the purposes of this subarticle "contested" means

giving notice of contestation even if verbally.

(1) In the case of a second or subsequent conviction for

possession of a prohibited drug for personal use within a period of

two years from the date of the first conviction the offender shall also

be tried before a Commissioner for Justice appointed in terms of the

Commissioners for Justice Act and shall be liable to the same

penalties and be subject to the same procedures as provided in article

4

Provided that upon a conviction for the second or

subsequent offence of a person habitually resident in Malta the

Commissioner for Justice shall order the person convicted to appear

before the Drug Offenders Rehabilitation Board established under

article 6.

(2) Notwithstanding the provisions of subarticle (1), in the

case of a second or subsequent conviction as referred to in subarticle

(1), where the prohibited drug involved in the offence is cannabis or

cannabis resin the Commissioner for Justice shall only refer the

convicted person to the Drug Offenders Rehabilitation Board if, after

considering the circumstances of the offence and of the offender, he is

satisfied that there are reasonable grounds to believe that the

circumstances of the convicted person give rise to a probability that

he is abusing or is likely to abuse prohibited drugs other than

cannabis or cannabis resin.

(3) The Commissioner for Justice shall in all cases make an Non-appearance

order for appearance before the Drug Offenders Rehabilitation Board before

Board.

in the case of any person who is charged with a second or subsequent

offence in terms of subarticles (1) or (2) and who either opts to pay

the penalty without proceedings in terms of the Commissioners for Cap. 291.

Justice Act or fails to appear before the Commissioner when duly

summoned.

(4) Where a person is referred to the Drug Offenders

Rehabilitation Board in terms of subarticles (1), (2) or (3), the said

Board shall summon the said person to appear before it and shall,

after conducting such examinations on the said person as are

proportionate and as it considers necessary, and if it finds that the said

person has a drug dependence problem which merits treatment, the

said Board shall issue such orders to that person as appear to the

Board to be necessary for the purpose of assisting that person to come

out of his drug dependence.

(5) Any person who after being referred to the Drug Offenders

Rehabilitation Board fails, without reasonable justification, to appear

before the Board on any occasion when he is to so appear, or who

fails without reasonable justification to comply with an order issued

to him by the Board shall be guilty of an offence against this Act and

shall be liable on conviction by the Court of Magistrates to a fine

(multa) of between one hundred euro (€100) and five hundred euro

(€500) or to imprisonment for a period of three months or to both

such fine and imprisonment.

(1) There shall be a Board to be known as the Drug Drug Offenders

Rehabilitation

Offenders Rehabilitation Board which shall consist of

Board.

(a)

a Chairman who shall be appointed by the Minister

who shall be either a retired Judge or a retired Magistrate or a

person who shall have exercised the profession of advocate for a

period of at least twelve years;

(b) one member who shall be appointed by the Minister

upon the recommendation of the Minister responsible for social

policy;

(c)

one member who shall be appointed by the Minister

upon the recommendation of the Minister responsible for home

affairs;

(d) one member who shall be appointed by the Minister

upon the recommendation of the Minister responsible for

health

Provided that the person appointed in terms of

paragraphs (b), (c) and (d) of this subarticle shall be appointed

from amongst persons coming from professions or duties which

are relevant to the rehabilitation of persons suffering from drug

dependence.

(2) The Minister may appoint more than one formation of the

Board in accordance with the method of appointment provided in

subarticle (1).

(3) In the case of equality of votes the Chairman of the Board

shall have a casting vote.

(4) The Drug Offenders Rehabilitation Board shall have the

following powers and functions

(a)

to interview and examine any person who is referred

to it by the Commissioner for Justice or by a Court in terms of

the provisions of this Act or of any other law;

(b) to order the taking of such blood or urine samples

from any person referred to it;

(c)

to obtain any information, technical assistance or

expert advice from any Government department or agency or

from any body set up by law for the purpose of assessing the

situation of any person referred to it;

(d) to take such proportionate measures as may appear

to the Board to be necessary for the purpose of assisting the

person referred to it to combat drug dependence problems;

(e)

to issue such orders or recommendations, which

may also include orders restrictive of freedom of movement, for

treatment or rehabilitation to any person referred to it for the

purpose of assisting such person to combat drug dependence

problems;

(f)

to advise and assist the Commissioner for Justice,

the Court of Magistrates or any other Court of criminal

jurisdiction upon the request of the said Commissioner for

Justice or Court in relation to measures related to proceedings

before the Commissioner for Justice or the Court, or in matters

relating to the assistance and rehabilitation of drug offenders

and persons charged with offences under the drug laws or with

offences which are related, directly or indirectly to drug

dependence;

(g) to oversee and advise about the establishment and

operation of a programme aimed at providing psychological

support to family members and other persons with a close

connection to persons suffering from drug dependence

problems;

(h) to work in co-ordination with the justice, social

policy, police, health and judicial training authorities for the

organization of training for practitioners involved in activities

related to the control of drug abuse and drug related behaviour;

(i)

to perform any other function related to the

rehabilitation of drug abusers as the Minister may from time to

time by regulations assign to it.

(3) Generally, for the purpose of exercising its powers and

functions, the Board shall have, mutatis mutandis, all such powers as

are by the provisions of Book Second of the Criminal Code vested in

the Court of Magistrates.

A person found guilty of cultivating the plant cannabis in a Cultivation of

small quantity not exceeding one plant, in circumstances where the the

cannabis.

Court is satisfied that such cultivation was for personal use, shall not

be liable to a mandatory term of imprisonment or to the exclusion of

the application of a probation order or of the suspension of a term of

imprisonment provided for in the drug laws.

(1) Where the accused is charged with an offence Drugs Court.

against the drug laws with regard to a quantity of prohibited drugs

which, irrespective of the kind of drug or of the purity, does not

exceed the quantity of the drugs listed in the Guidelines found in the

Fourth Schedule to the Dangerous Drugs Ordinance or in the Fourth Cap. 101.

Schedule to the Medical and Kindred Professions Ordinance as a Cap. 31.

quantity of drugs indicative that the accused should not be referred

for trial before the Criminal Court, or is charged with the commission

of any crime not liable to a punishment of more than seven years

imprisonment, and the conditions referred to in subarticle (2) are

satisfied, the Court may, after hearing submissions made on behalf of

the accused and on behalf of the prosecution and after hearing any

witness which the Court considers it necessary to hear and after

consulting the Drug Offenders Rehabilitation Board, issue a decree

whereby the Court will assume the function of a Drugs Court.

(2) The conditions to be satisfied for the purpose of subarticle

(1) are the following

(a)

that the offence against the drug laws or against any

other law with which the accused is charged is substantially

attributable to the grave and medically proved drug dependence

of the accused;

(b) that the offence against any law other than the drug

laws with which the accused is charged does not consist of a

wilful offence against the person or of a crime committed whilst

the accused was in possession of arms proper or with the use of

fire or explosives;

(c)

that there are objective reasons which indicate that

the accused is likely to be rehabilitated from drug dependence

or that he has made substantial progress or effort to free himself

of drug dependence.

(3) When the Court issues a decree that it is to assume the

functions of a Drugs Court, the Court shall proceed to refer the

accused before the Drug Offenders Rehabilitation Board which shall

be entitled to give such orders in respect of the accused as provided in

article 6.

(4) In the event that the accused fails to comply with the

orders of the Drug Offenders Rehabilitation Board or if the Board,

after examining the facts, considers that the accused is not showing

commitment to his rehabilitation, the Board shall, without prejudice

to any liability of the accused under article 5(5), recommend to the

Court to revoke its decision to convert itself into a Drugs Court and to

proceed with the trial.

(5) Where the Drug Offenders Rehabilitation Board, within a

period of not more than eighteen months from when the accused was

referred to it, considers that the accused has managed to substantially

free himself of drug dependence, the Board shall report that fact to

the Court and it shall refer the accused back to the Court.

(6) After it receives the report referred to in subarticle (5), the

Court shall order the Registrar of Criminal Courts and Criminal

Tribunals to furnish it with a list of all pending criminal cases against

the accused, other than cases over which a Court of Magistrates does

not have and cannot be granted competence and offences involving

charges as referred to in subarticle (2)(b), and it shall, insofar as it

considers such a measure to be in the best interests of the

rehabilitation of the accused after also taking due account of the

interests of the proper administration of justice and of victims, recall

all such cases as may fall within the competence of the Court of

Magistrates or to which the competence of the Court of Magistrates

may be extended so that they will be heard and decided before it if the

Court is the Court of Magistrates and if the Court is the Criminal

Court they shall be decided before it consisting only of the Judge

Provided that in cases to which this subarticle applies,

where an offence referred to in this subarticle exceeds the competence

of the Court but consists of an offence to which the said competence

may be extended, the Court’s competence shall be deemed to have

been extended by operation of law by virtue of the decree recalling

such cases to be heard and determined before it with no further

consent or formality being required.

(7) In cases where a recall of other cases is made in terms of

subarticle (6) the Court may, notwithstanding any other law, in the

event of any conviction, decide not to apply any minimum term of

mandatory imprisonment or the exclusion of the application of a

probation order or of the suspension of a term of imprisonment

applicable to any offence in respect of which the accused is found

guilty

Provided that the Court shall only refrain from applying a

mandatory minimum term of imprisonment or the exclusion of the

application of a probation order or of the suspension of a term of

imprisonment if it is satisfied on a balance of probabilities that the

offence of which the accused has been found guilty was mainly

attributable to his drug dependence.

(8) In giving judgement in cases to which subarticles (5), (6)

and (7) apply, the Court may also order that any offence of which the

accused has been found guilty, other than an offence for which the

accused has been sentenced to imprisonment without the application

of article 28A of the Criminal Code, shall not be taken into account Cap. 9.

for the purposes of the issue of a conduct certificate under the

Conduct Certificates Ordinance after the lapse of a period being a Cap. 77.

minimum of one year and a maximum of three years from the date of

the Court’s judgement unless the offender relapses.

(9) There shall be no right of appeal from a decision of the

Court to assume the functions of a Drugs Court or to decline a request

to do so, or from any decision of the Drug Offenders Rehabilitation

Board.

(10) Where the accused has been referred to the Drug Offenders

Rehabilitation Board as provided in this article the accused shall,

during the period whilst he is so referred, be brought before the Court

at intervals of not more than three months for the Court to be updated,

whether orally or in writing, by the Board with regard to the progress

of the rehabilitation or treatment of the accused.

(11) During the time when the accused is referred to the Drug

Offenders Rehabilitation Board the Court shall continue to hear the

case against the accused as though no such referral was made but it

shall not pass judgement.

(1) There shall be a Board to be known as the

Sentencing Policy Advisory Board which shall consist of such

number of persons not being less than three or more than six as the

Minister may from time to time appoint.

(2) The function of the Board shall be to suggest policies for

the sentencing of persons found guilty of drug and drug related

offences in such a manner as to aim at achieving consistency in the

punishments given for such offences by different courts.

(3) The Minister, after consultation with the Commission for

the Administration of Justice, may by regulations extend the

competence of the Sentencing Policy Advisory Board to other

offences.

(4) Upon drafting sentencing policies the Board shall report to

the Minister who shall refer the draft policies for an opinion from the

Commission for the Administration of Justice, making such

comments in writing as the Minister may deem appropriate.

(5) The Commission for the Administration of Justice shall

issue its opinion on the draft sentencing policies within six months

from the end of the month during which these are communicated to it

by the Minister

Provided that if the opinion of the Commission for the

Administration of Justice is not received by the Minister within a

period of thirty days following the expiry of the period of six months

referred to in this subarticle, the Minister shall be entitled to proceed

to adopt and publish the said sentencing policies or to extend the said

period of six months upon the request of the Commission if he

considers that such extension is justified

Provided further that where the Commission for the

Administration of Justice has approved a sentencing policy this shall

be published by the Minister as so approved unless the Minister, for

reasons to be stated in writing, considers it necessary to depart from

the approved policy.

A specialist registered under the Health Care Professions Use of

Act under the specialists register in respect of the speciality in medicinal

preparations of

neurology, oncology and radiotherapy, anaesthetics and intensive care cannabis.

medicine, psychiatry or of any other specialists register under the said

Act which the Minister responsible for health may by regulations made

by virtue of this article prescribe, shall be entitled to prescribe to

patients medicinal preparations of the plant cannabis licensed under the

Medicines Act, if he considers that there is no viable alternative to such

prescription due account being taken of any protocols which may be in

force from time to time in respect of the prescription of medicines, of

the interests of the patient and of the costs.

(1) Any person who provides assistance to another Persons

person suffering from a drug overdose by taking such person to a providing

assistance to a

hospital or to a place where he can receive appropriate medical care person

from a drug

or who seeks the assistance of the competent authorities for such a overdose.

purpose shall, without prejudice to his liability for any other offence,

not be liable to be prosecuted for having shared or consumed a

prohibited drug in a quantity for personal use with the person

suffering from the said overdose.

(2) Where the person providing assistance in accordance with

subarticle (1) shall be liable to prosecution for any other offence

directly connected with the overdose of the assisted person the

punishment to which such person shall be liable on conviction shall

be reduced by one degree.

The Minister may make regulations for the better Power to make

implementation of any of the provisions of this Act and, without regulations.

prejudice to the generality of the foregoing, such regulations may

make provision

(a)

for establishing procedures to be followed by

Commissioners for Justice taking cognizance of cases under this

Act and in respect of the procedure to be followed by the Drug

Offenders Rehabilitation Board;

(b) for the organization of schemes of community

service and to provide that such schemes may, with the

authorisation of a Court or of a Commissioner for Justice, as the

case may be, be used as an alternative to any pecuniary penalty

which may be imposed by a Court or by a Commissioner for

Justice under this Act;

(c)

for varying the amount of penalties that may be

imposed by Commissioners for Justice under this Act provided

that the maximum penalty so established shall not exceed five

hundred euro (€500);

(d) for providing for procedures to be followed for the

immediate payment of penalties without proceedings in respect

of penalties to which a person may become liable under this

Act;

(e)

for providing, in a proportionate manner, for the

non-renewal of licences or other authorisations of any kind to a

person convicted of any offence consisting of simple possession

of a drug for personal use until a penalty due is actually paid;

(f)

for prescribing anything that may be prescribed under

this Act.

This Act shall not apply

(a) in respect of any offence against the drug laws, other

than an offence consisting of the simple possession for personal

use of a prohibited drug, committed within, or within one

hundred metres from, the perimeter of a school, youth club or

centre or such other place where young people habitually meet;

or

(b) where the offence consists in the sale, supply,

administration or offer of prohibited drugs to a minor, to a

woman with child or to a person who is following a programme

for cure and rehabilitation from drug dependence and to which

the second proviso to subarticle (2) of article 120A of the

Medical and Kindred Professions Ordinance or the second

proviso to subarticle (2) of article 22 of the Dangerous Drugs

Ordinance apply; or

(c)

where the offence against the drug laws is one

committed in or in relation to a correctional facility.

Article 3 of The Commissioners for Justice Act shall be

amended as follows

(a)

in the proviso to subarticle (3) thereof, for the words

"Provided that the Court of Magistrates shall have jurisdiction"

there shall be substituted the words "Provided that the Court of

Magistrates or any other court of criminal jurisdiction shall have

jurisdiction";

(b) immediately after subarticle (3) thereof, there shall

be added the following new subarticles

"(4) Notwithstanding

the

other

provisions of this Act, an offence against the

Dangerous Drugs Ordinance or against the

Medical and Kindred Professions Ordinance

which is triable under this Act shall not cease

to be a criminal offence and the courts of

criminal jurisdiction shall retain a concurrent

jurisdiction to try that offence so however that

the punishments applicable after the coming

into force of this Act shall not exceed the

punishments which would be applied had the

offence been tried before a Commissioner for

Justice under this Act

Provided that the Courts of criminal

jurisdiction shall, by virtue of this Act, be

entitled to apply any penalty which may be

applied by a Commissioner for Justice under

this Act in respect of an offence which

according to this Act is to be tried before a

Commissioner for Justice

Provided further that the period of

prescription applicable in respect of an offence

against the Medical and Kindred Professions

Ordinance and the Dangerous Drugs

Ordinance triable under this Act shall,

notwithstanding the other provisions of this

Act, be the same applicable in respect of that

offence under the said Ordinances read in

conjunction with the provisions of the Criminal

Code on prescription.

(5) An offence referred to in subarticle

(4) shall remain subject to all the powers of

the Executive Police in respect thereof as if it

had not been an offence triable by a

Commissioner for Justice under this Act for

the purposes of the investigation of the said

offence or of any other offence.

(6) Notwithstanding the provisions of

subarticles (4) and (5) or of any other law, an

offence referred to in subarticle (4) shall not

be taken into account for the purposes of the

issue of conduct certificates under the

Conduct Certificates Ordinance but the

Registrar of the Tribunal or any other person

as may be designated by regulations made by

the Minister shall keep a register of all

convictions or voluntary payments of

penalties in respect of offences referred to in

subarticle (4) and such register shall be

accessible to the Executive Police, to the

Registrar of Criminal Courts and Criminal

Tribunals and to any other public authority as

the Minister may by regulations designate.

(7) Prosecution

before

the

Commissioners for Justice for offences

against the Medical and Kindred Professions

Ordinance or against the Dangerous Drugs

Ordinance for possession for personal use of a

prohibited drug shall be carried out by the

Executive Police who shall however appear

before the Commissioner in plain clothes.".

Immediately after subarticle (6) of article 10 of the

Commissioners for Justice Act there shall be added the following new

subarticle

"(7) A person who fails to pay a penalty

imposed upon him under this Act, whether by

the Commissioner or by a Court, for an offence

against the Medical and Kindred Professions

Ordinance or the Dangerous Drugs Ordinance

may, upon the demand of the Registrar of the

Tribunal or of the Registrar of Criminal Courts,

as the case may be, be brought before the

Tribunal or before the Court for the purpose of a

determination being made as to whether the

cause of the failure to pay is drug dependence

and in the case that the Commissioner or the

Court are of the opinion that on the basis of

probabilities the person found guilty has failed

to pay the penalty due to a problem of drug

dependence they shall be entitled to order that

the said person be referred to the Drug

Offenders Rehabilitation Board established

under article 6 of the Drug Dependence

(Treatment not Imprisonment) Act, 2015 and

the powers and functions of that Board shall

mutatis mutandis apply to that person without

prejudice to the other provisions of this Act.".

In paragraph (b) of article 13 of the Commissioners for Amendment of

Justice Act, for the words "established for contraventions;" there shall article

Commissioners

be substituted the words "established for contraventions:" and for

immediately thereafter there shall be added the following proviso

"Provided further that nothing in this paragraph shall be

interpreted as preventing Parliament from amending the

Schedule by means of an Act of Parliament to include therein

offences which are liable to punishments which are higher than

the punishments established for contraventions;".

The schedule to the Commissioners for Justice Act shall be Amendment of

the Schedule to

amended as follows

the

Commissioners

for Justice Act.

(a)

for the words "Particular provisions if any" in the

heading of the third column thereof, there shall be substituted

the words "Particular provisions, if any, or description of

offence"; and

(b) immediately after the item "Management of Bathing

Water Quality Regulations" there shall be added the following

new items under the columns indicated below

Particular provisions, if any,

Legislation

or description of offence

"Dangerous Drugs Ordinance

Simple

possession

for

personal use of a prohibited

drug in an amount not

exceeding two grams of any

drug other than cannabis or

three point five grams of the

drug cannabis irrespective of

the purity.

Medical and Kindred

Simple possession of a

Professions Ordinance

prohibited drug for personal

use in an amount not

exceeding

two

grams

irrespective of purity or of not

more than two ‘ecstasy’ pills

or two other prohibited

pillsand simple possession for

personal use of the plant

‘khat’.".

Passed by the House of Representatives at Sitting No. 238 of the

11th February, 2015.

A NĠLU F ARRUGIA

Speaker

R AYMOND S CICLUNA

Clerk of the House of Representatives

€1.44