ACT No. XVIII of 2020 AN ACT to further amend the Criminal Code, Cap. 9.

I assent.

(L.S.)

GEORGE VELLA

President

7th April, 2020

ACT No. XVIII of 2020

AN ACT to further amend the Criminal Code, Cap. 9.

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 Criminal Code

(Amendment No. 2) Act, 2020, and this Act shall be read and

construed as one with the Criminal Code, hereinafter referred to as

"the Code".

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

responsible for justice may by notice in the Gazette establish, and

different dates may be so established for different provisions and

different purposes of this Act.

Immediately after Sub-title II of Title V of Part II of Book

First of the Code there shall be added the following new Sub-Title

"Sub-title III

OF FRAUD AGAINST THE EUROPEAN UNION’S

FINANCIAL INTERESTS

The measures in this Sub-title transpose the provisions of Directive

(EU) 2017/1371 of the European Parliament and of the Council of 5

July 2017 on the fight against fraud to the Union's financial interests

by means of criminal law.

190A. (1) This

Sub-title

establishes

rules

concerning the combating of fraud and other illegal

activities affecting the European Union’s financial

interests.

(2) In respect of revenue arising from VAT own

resources, this Sub-title shall apply only in cases of

serious offences against the common VAT system. For

the purposes of this Sub-title, offences against the

common VAT system shall be considered to be serious

where the intentional acts or omissions defined in

paragraph (d) of article 190C are connected with the

territory of Malta and another Member State or Member

States of the European Union and involve a total damage

of at least ten million euro (€10,000,000).

(3) Nothing in this Sub-title shall affect the

structure and functioning of the tax administration of

Malta.

(4) The sanctions for the offences under this Sub-

title shall be without prejudice to the exercise of

disciplinary powers by the competent authorities against

public officers.

(5) The application of administrative measures,

penalties and fines as laid down in European Union law,

in particular those within the meaning of Articles 4 and 5

of Regulation (EC, Euratom) No. 2988/95, or in national

law adopted in compliance with a specific obligation

under European Union law, shall be without prejudice to

this Sub-title. Any criminal proceedings initiated on the

basis of this Sub-title shall not unduly affect the proper

and effective application of administrative measures,

penalties and fines that cannot be equated to criminal

proceedings, laid down in European Union or national

law.

190B. For the purposes of this Sub-title the following

definitions, unless the context otherwise requires, shall

apply

"public officer" shall have the same meaning

as is assigned to it in article 92 and shall also

include a Union official or a national official of a

Member State of the European Union other than

Malta and any national official of a third country;

(i) "Union Official" means a person

who is

-

an official or other servant

engaged under contract by the

European Union within the meaning of

the Staff Regulations of Officials and

the Conditions of Employment of

Other Servants of the European Union

laid down in Council Regulation (EEC,

Euratom, ECSC) No. 259/68 (the ‘Staff

Regulations’), or

-

seconded to the European

Union by a Member State or by any

public or private body, who carries out

functions

equivalent

to

those

performed by Union officials or other

servants

Provided that, without prejudice

to the provisions on privileges and

immunities contained in Protocols No. 3 and

No. 7 annexed to the Treaty on European

Union and the Treaty on the Functioning of

the European Union, Members of the

European Union institutions, bodies, offices

and agencies, set up in accordance with the

Treaties and the staff of such bodies shall be

assimilated to Union officials, inasmuch as

the Staff Regulations do not apply to them;

(ii) "national official" shall include

any

person

holding

an

executive,

administrative or judicial office at national,

regional or local level. Any person holding a

legislative office at national, regional or local

level shall be assimilated to a national

official;

"European Union’s financial interests" shall mean all

revenues, expenditure and assets covered by, acquired

through, or due to

(a) the European Union budget;

(b) the budgets of the European Union

institutions, bodies, offices and agencies

established pursuant to the Treaties or budgets

directly or indirectly managed and monitored by

them.

190C. (1) Whosoever intentionally commits fraud

affecting the European Union’s financial interests shall

be liable, on conviction, to imprisonment for a term of

six (6) months to four (4) years.

(2) For the purposes of this Sub-title, the following

shall be regarded as fraud affecting the European

Union’s financial interests

(a) in respect of non-procurement-related

expenditure, any act or omission relating to

(i) the use or presentation of false,

incorrect or incomplete statements or

documents, which has as its effect the

misappropriation or wrongful retention of

funds or assets from the European Union

budget or budgets managed by the European

Union, or on its behalf;

(ii) non-disclosure of information in

violation of a specific obligation, with the

same effect; or

(iii) the misapplication of such funds

or assets for purposes other than those for

which they were originally granted;

(b) in respect of procurement-related

expenditure, at least when committed in order to

make an unlawful gain for the perpetrator or

another by causing a loss to the European Union's

financial interests, any act or omission relating to

(i) the use or presentation of false,

incorrect or incomplete statements or

documents, which has as its effect the

misappropriation or wrongful retention of

funds or assets from the European Union

budget or budgets managed by the European

Union, or on its behalf;

(ii) non-disclosure of information in

violation of a specific obligation, with the

same effect; or

(iii) the misapplication of such funds

or assets for purposes other than those for

which they were originally granted, which

damages the European Union's financial

interests;

(c) in respect of revenue other than

revenue arising from VAT own resources referred

to in paragraph (d), any act or omission relating to

(i) the use or presentation of false,

incorrect or incomplete statements or

documents, which has as its effect the illegal

diminution of the resources of the European

Union budget or budgets managed by the

European Union, or on its behalf;

(ii) non-disclosure of information in

violation of a specific obligation, with the

same effect; or

(iii) misapplication of a legally

obtained benefit, with the same effect;

(d) in respect of revenue arising from VAT

own resources, any act or omission committed in

cross-border fraudulent schemes in relation to

(i) the use or presentation of false,

incorrect or incomplete VAT-related

statements or documents, which has as an

effect the diminution of the resources of the

European Union budget;

(ii) non-disclosure of VAT-related

information in violation of a specific

obligation, with the same effect; or

(iii) the presentation of correct VAT-

related statements for the purposes of

fraudulently disguising the non-payment or

wrongful creation of rights to VAT refunds.

190D. (1) Any public officer who, directly or

through an intermediary, requests or receives advantages

of any kind for himself or for a third party, or accepts a

promise of such an advantage, to act or to refrain from

acting in accordance with his duty or in the exercise of

his functions in a way which damages or is likely to

damage the European Union's financial interests shall be

liable, on conviction, to imprisonment for a term of six

(6) months to four (4) years.

(2) Whosoever promises, offers or gives, directly or

through an intermediary, an advantage of any kind to a

public officer for himself or for a third party for him to

act or to refrain from acting in accordance with his duty

or in the exercise of his functions in a way which

damages or is likely to damage the European Union's

financial interests shall on conviction be liable to a term

of imprisonment of six (6) months to four (4) years.

190E. Any public officer who is directly or indirectly

Misappropriation

entrusted with the management of funds or assets, and

Union’s financial

who commits or disburses funds or appropriates or uses

assets contrary to the purpose for which they were

intended in any way which damages the European

Union’s financial interests shall be liable, on conviction,

to imprisonment, for a term of three (3) to eighteen (18)

months.

190F. Whosoever incites, aids, abets or attempts any

offence under articles 190C, 190D or 190E shall be

guilty of an offence and shall be liable on conviction to

the punishment laid down for the offence aided, abetted

or instigated.

190G. (1) Where any offence under this Sub-title is

committed for the benefit, in part or in whole, of a body

corporate by a person acting individually or as part of an

organ of the body corporate, and having a leading

position within the body corporate, based on

(a) a power of representation of the body

corporate,

(b) an authority to take decisions on behalf

of the body corporate, or

(c) an authority to exercise control within

the body corporate,

such body corporate shall be liable to the payment of a

fine (multa) of not less than twenty thousand euro

( € 2 0 , 0 0 0 ) a n d no t m o r e t h a n t w o m i l l i o n e u r o

(€2,000,000), which fine may be recovered as a civil

debt and the sentence of the Court shall constitute an

executive title for all intents and purposes of the Code of

Organization and Civil Procedure.

(2) A body corporate shall also be held liable for an

o ff e n c e u n d e r t h i s S u b - t i t l e w h e r e t h e l a c k o f

supervision or control by a person referred to in sub-

article (1) has made possible the commission of the

offence, by any person under its authority, for the benefit

of that body corporate, which shall upon conviction be

liable to the punishment laid down in sub-article (1).

(3) Corporate liability pursuant to sub-articles (1)

and (2) shall not exclude the possibility of criminal

proceedings against natural persons who are perpetrators

of the criminal offences referred to in articles 190C,

190D or 190E or who are criminally liable under article

190F. (4) Without prejudice to the application of the

punishments under sub-articles (1) and (2), where a body

corporate is held liable pursuant to this article the

following sanctions may simultaneously be applied

(a) exclusion from entitlement to public

benefits or aid;

(b) temporary or permanent exclusion

from public tender procedures;

(c) the suspension or cancellation of any

licence, permit or other authority to engage in any

trade, business or other commercial activity;

(d) placing under judicial supervision;

(e) the compulsory winding up of the body

corporate; or

(f) the temporary or permanent closure of

establishments which have been used for the

commission of the criminal offence.

(5) This article shall not apply to States or public

b od i e s e x e r c i s i ng S t a t e a u t h o r i t y, o r t o p u b l i c

international organisations.

190H. (1) Where the offences referred to in articles

190C, 190D, 190E and 190F involve considerable

damage or advantage, the offender shall be liable, on

conviction, to imprisonment, for a term of four (4) to

eight (8) years.

(2) The damage or advantage resulting from the

criminal offences referred to in article 190C(2)(a), (b)

and (c) and in article 190D shall be presumed to be

considerable where the damage or advantage involves

more than one hundred thousand euro (€100,000).

(3) The damage or advantage resulting from

criminal offences referred to in article 190C(2)(d) and in

respect of article 190A(2) shall always be deemed to be

considerable.

190I. The punishment for the offences referred to in

articles 190C, 190D, 190E and 190F shall be increased

by one to two degrees where the offence was committed

within the framework of a criminal organisation within

the meaning of Council Framework Decision 2008/ 841/

JHA of 24 October 2008 on the fight against organised

crime.

190J. (1)

Article 121C shall apply mutatis

mutandis to the offences under this Sub-title.

(2) Without prejudice to the generality of sub-

article (1), the Maltese courts shall also have jurisdiction

over the offences laid down in this Sub-title where the

offender is subject to the Staff Regulations of Officials

of the European Union at the time of commission of the

criminal offence, and that person is at the same time a

citizen or permanent resident in Malta within the

meaning of article 5(1)(d)

Provided that the application of this sub-article shall

fully respect the principle of ne bis in idem.

190K. (1) This Sub-title shall be without prejudice to

the recovery of any VAT not paid in the context of the

commission of the offences referred to in article

190C(2)(d) or in articles 190D, 190E or 190F.

(2) This Sub-title shall be without prejudice to the

application of any administrative measures, penalties

and fines laid down in law, and any criminal proceedings

initiated pursuant to this Sub-title shall not unduly affect

the proper and effective application of such

administrative measures, penalties and fines.".

Article 355AT of the Code shall be amended as follows

(a) in sub-article (1) thereof immediately after the words

"6 November 2013 (L294/1)" there shall be added the words

"and the provisions of Directive 2016/1919/EU of the European

Parliament and of the Council of 26 October 2016 on legal aid

for suspects and accused persons in criminal proceedings and for

requested persons in European arrest warrant proceedings"; and

(b) immediately after sub-article (4) thereof there shall

be added the following new sub-article

"(5) For the purpose of this Sub-title, the expression

"legal aid" means funding by the Minister, of the assistance

of a lawyer, enabling the exercise of the right of access to a

lawyer.".

Article 355AU of the Code shall be amended as follows

(a) sub-articles (4) and (5) thereof shall be renumbered

as sub-articles (5) and (6);

(b) immediately after sub-article (3) thereof there shall

be added the following new sub-article

"(4) The provisions relating to legal aid under this Sub-

title shall apply

(a) to suspects and accused persons in criminal

proceedings who have a right of access to a lawyer

pursuant to this Sub-title and who are

(i)

deprived of liberty;

(ii)

required to be assisted by a lawyer by

law; or

(iii) required or permitted to attend an

investigative or evidence-gathering act, including as

a minimum the following

(A) identity parades;

(B)

confrontations;

(C) reconstructions of the scene of a

crime; and

(b) to a requested person upon an arrest under

article 355AUT(2)(c) persons who have a right of access to

a lawyer under this Sub-title;

(c) under the same conditions as provided for in

paragraph (a), to persons who were not initially suspects or

accused persons but become suspects or accused persons in

the course of questioning by the police or by another law

enforcement authority.".

In sub-article (1) of article 355AUH of the Code immediately

after the words "European arrest warrant." there shall be added the

words "The requested person may elect to be assisted by the Advocate

for Legal Aid in which case the Advocate for Legal Aid shall assign a

lawyer for this purpose.".

In sub-article (1) of article 355AUJ of the Code immediately Amendment of

after the words "vulnerable suspects," there shall be added the words article

"vulnerable requested persons".

In sub-article (1) of article 531 of the Code, immediately after Amendment of

the words "with closed doors" there shall be added the words "in all article

cases involving children below the age of eighteen (18) or".

Immediately after Title VI, Part I, Book Second of the Code Addition of new

there shall be added the following new Title

"Title VII

OF THE RIGHTS OF CHILDREN WHO ARE

SUSPECTS OR ACCUSED PERSONS

The measures in this Title provided for the transposition of Directive

(EU) 2016/800 of the European Parliament and of the Council of 11

May 2016 on procedural safeguards for children who are suspects or

accused persons in criminal proceedings.

534AGA. This Title lays down rules concerning

Rules

concerning

certain rights of children who are

certain rights of

children.

(a) suspects or accused persons in criminal

proceedings; or

(b) subject to European arrest warrant

proceedings pursuant to Framework Decision

2002/584/JHA (hereinafter referred to as

"requested persons").

534AGB. For the purpose of this Title, the expression

Scope.

"child" means a person below the age of eighteen

(18)

Provided that where it is uncertain whether a

person has reached the age of eighteen (18), that person

shall be presumed to be a child;

"holder of parental responsibility" means any person

having parental responsibility over a child;

"Minister" means the Minister responsible for justice;

"parental responsibility" means all rights and duties

relating to the person or the property of a child which are

given to a natural or legal person by judgment, by

operation of law or by an agreement having legal effects,

including rights of custody and rights of access.

534AGC. (1) This Title applies to children who are

suspects or accused persons in criminal proceedings,

until the final determination of the question on whether

the suspect or accused person has committed a criminal

offence, including, where applicable, sentencing and the

resolution of any appeal.

(2) This Title applies to children who are requested

persons from the time of their arrest in the executing

Member State, in accordance with article 534AGP.

(3) With the exception of article 534AGE, article

534AGH(3)(b), and article 534AGN, insofar as those

provisions refer to a holder of parental responsibility, the

provisions of this Title shall apply to persons as referred

to in sub-articles (1) and (2), where such persons were

children when they became subject to the proceedings

but have subsequently reached the age of eighteen (18),

and the application of this Title, or certain provisions

thereof, is appropriate in the light of all the

circumstances of the case, including the maturity and

vulnerability of the person concerned

Provided that this Title shall not apply to

persons who have reached the age of twenty-one (21) at

any stage of the proceedings.

(4) Nothing in this Title shall

(a) affect the application of the provisions

in Title II, Part I, Book First which determine the

age of criminal responsibility;

(b) prejudice the right of access to a lawyer

in accordance with Sub-title IX of Title I of Part I,

Book Second.

(5) Sub-articles (4) and (5) of article 355AU shall

apply mutatis mutandis to this Title.

534AGD. (1) When children are made aware that

they are suspects or accused persons in criminal

proceedings, they shall be informed promptly of their

rights in accordance with Title VI, Part I of Book Second

and in accordance with this Title, and about the general

aspects of the conduct of the proceedings.

(2) The information referred to in sub-article (1)

shall be provided

(a) promptly when children are made

aware that they are suspects or accused persons, in

respect of

(i) the right to have the holder of

parental responsibility informed, as provided

for in article 534AGE;

(ii) the right to be assisted by a

lawyer, as provided for in article 534AGF;

(iii) the right to protection of privacy,

as provided for in article 531;

(iv) the right to be accompanied by

the holder of parental responsibility during

stages of the proceedings other than court

hearings, as provided for in article

534AGN(4);

(b) at the earliest appropriate stage in the

proceedings, in respect of

(i) the right to an individual

assessment, as provided for in article

534AGG;

(ii) the

right

to

a

medical

examination, including the right to medical

assistance, as provided for in article

534AGH;

(iii) the right to limitation of

deprivation of liberty and to the use of

alternative measures, including the right to

periodic review of detention, as provided for

in articles 534AGJ and 534AGK;

(iv) the right to be accompanied by

the holder of parental responsibility during

court hearings, as provided for in article

534AGN(1);

(v) the right to appear in person at

trial, as provided for in article 534AGO;

(vi) the right to effective remedies;

(c) upon deprivation of liberty, in respect

of the right to specific treatment during deprivation

of liberty, as provided for in article 534AGL.

(3) The information referred to in sub-articles (1)

and (2) shall be given in writing, orally or both, in simple

and accessible language, and such information shall be

noted, using the recording procedure permitted by law.

(4) Where children are provided with a Letter of

Rights pursuant to Title VI, Part I, Book Second, such a

Letter shall include a reference to their rights under this

Title.

534AGE. (1) The Executive Police or any other law

enforcement or judicial authority, as the case may be,

shall provide the holder of parental responsibility, as

soon as possible, with the information that the child has a

right to receive, in accordance with article 534AGD.

(2) The information referred to in sub-article (1)

shall be provided to another appropriate adult who is

nominated by the child and accepted as such by the

Police or by any other law enforcement or judicial

authority, as the case may be, where providing that

information to the holder of parental responsibility

(a)

would be contrary to the child's best

interests;

(b) is not possible because, after reasonable

efforts have been made, no holder of parental

responsibility can be reached or his or her identity

is unknown; or

(c) could, on the basis of objective and

factual circumstances, substantially jeopardise the

criminal proceedings

Provided that where the child has not nominated

another appropriate adult, or where the adult who has

been nominated by the child is not acceptable to the

Police or other law enforcement or judicial authority, as

the case may be, the latter shall, taking into account the

child's best interests, designate, and provide the

information to, another person. That person may also be

the representative of an authority or of another institution

responsible for the protection or welfare of children.

(3) Where the circumstances which led to the

application of sub-article (2)(a), (b) or (c) cease to exist,

any information that the child receives in accordance

with article 534AGD, and which remains relevant in the

course of the proceedings, shall be provided to the holder

of parental responsibility.

534AGF. (1) Children who are suspects or accused

persons in criminal proceedings shall have the right of

access to a lawyer, in accordance with the provisions of

Sub-title IX of Title I of Part I of Book Second. Nothing

in this Title, in particular in this article, shall affect that

right.

(2) Without prejudice to the generality of sub-

article (1), the rights referred to in articles 355AUA (1),

(2), (8)(b), (c) and (e) and 355AUB shall mutatis

mutandis apply to children who are suspects or accused

persons under this Title

Provided that where assistance by a lawyer is

not proportionate in the light of the circumstances of the

case, taking into account the seriousness of the alleged

criminal offence, the complexity of the case and the

measures that could be taken in respect of such an

offence, the right to assistance by a lawyer may be

derogated from insofar as this complies with the right to

a fair trial, it being understood that the child’s best

interests shall always be a primary consideration

Provided further that the derogation in the

preceding proviso shall not apply and children shall

always be assisted by a lawyer in the following cases

(a) when they are brought before a

competent court or judge in order to decide on

detention at any stage of the proceedings within the

scope of this Title; and

(b)

during detention

Provided further that deprivation of liberty shall

not be imposed as a criminal sentence, unless the child

has been assisted by a lawyer in such a way as to allow

the child to exercise the right of defence effectively and,

in any event, during the trial hearings before a court.

(3) Where the child is to be assisted by a lawyer in

accordance with this Title but no lawyer is present, the

Executive Police or any other law enforcement or

judicial authority, as the case may be, shall postpone the

questioning of the child, or other investigative or

evidence-gathering acts as provided for in article

355AUA(8)(e), for a reasonable period of time in order

to allow for the arrival of the lawyer or, where the child

has not nominated a lawyer, to arrange a lawyer for the

child.

(4) In exceptional circumstances, and only at the

pre-trial stage, a temporary derogation from the

appl ica ti o n of t he ri gh t s provi ded fo r i n art ic le

355AUA(2), to the extent justified in the light of the

particular circumstances of the case, may be applied on

the basis of one of the following compelling reasons

(a) where there is an urgent need to avert

serious adverse consequences for the life, liberty or

physical integrity of a person;

(b) where immediate action by the

investigating authorities is imperative to prevent

substantial jeopardy to criminal proceedings in

relation to a serious criminal offence

Provided that for the purposes of this sub-article the

expression "pre-trial stage" shall have the same meaning

as is assigned to it in article 355AUA(13).

(5) In the application of sub-article (4) the child's

best interests shall be taken into account, and a decision

to proceed with questioning in the absence of a lawyer

under sub-article (4) shall be taken on a strictly case-by-

case basis either by the Police or by any other law

enforcement or judicial authority as the case may be

Provided that such decision may be appealed by

t he hol d er of pa ren t al res p on s ib i li t y o r ano th er

appropriate adult as referred to in article 534AGE before

the Court of Appeal (Inferior Jurisdiction) within twelve

(12) days from such a decision.

534AGG. (1) In the application of the provisions of

this Title, the specific needs of children concerning

protection, education, training and social integration

shall be taken into account.

(2) For the purposes of sub-article (1), children who

are suspects or accused persons in criminal proceedings

shall be individually assessed. The individual assessment

shall, in particular, take into account the child's

personality and maturity, the child's economic, social and

family background, and any specific vulnerabilities that

the child may have

Provided that the extent and detail of the

individual assessment may vary depending on the

circumstances of the case, the measures that can be taken

if the child is found guilty of the alleged criminal

offence, and whether the child has, in the recent past,

been the subject of an individual assessment.

(3) The individual assessment shall serve to

establish and to note, in accordance with the recording

procedure permitted by law, such information about the

individual characteristics and circumstances of the child

as might be of use to the Court when

(a) determining whether any specific

measure to the benefit of the child is to be taken;

(b) assessing the appropriateness and

effectiveness of any precautionary measures in

respect of the child;

(c) taking any decision or course of action

in the criminal proceedings, including when

sentencing.

(4) The individual assessment shall be carried out at

the earliest appropriate stage of the proceedings and,

subject to sub-article (5), before the child is charged with

a criminal offence.

(5) In the absence of an individual assessment, a

child may nevertheless be charged with a criminal

offence provided that this is in the child's best interests

and that the individual assessment is in any event

available at the beginning of the trial hearings before a

court.

(6) Individual assessments shall be carried out with

the close involvement of the child. They shall be carried

out by qualified personnel, following, as far as possible,

a multidisciplinary approach and involving, where

appropriate, the holder of parental responsibility, or

another appropriate adult as referred to in articles

534AGE and 534AGN, and, or a specialised

professional.

(7) If the elements that form the basis of the

individual assessment change significantly in the course

of the criminal proceedings, the Court shall order that the

individual assessment is updated throughout the criminal

proceedings.

(8) The Executive Police or other law enforcement

or judicial authority, as the case may be, following

consultation with the Director of the Department for

Social Welfare Standards, may derogate from the

obligation to carry out an individual assessment on a case

by case basis where such a derogation is warranted in the

circumstances of the case, provided that it is compatible

with the child's best interests.

534AGH. (1) Children who are deprived of liberty

shall have the right to a medical examination without

undue delay with a view, in particular, to assessing their

general mental and physical condition. The medical

examination shall be as non-invasive as possible and

shall be carried out by a physician or another qualified

healthcare professional.

(2) The results of the medical examination shall be

taken into account when determining the capacity of the

child to be subject to questioning, other investigative or

evidence-gathering acts, or any measures taken or

envisaged against the child.

(3) The medical examination shall be carried out

either on the initiative of the Court, in particular where

specific health indications call for such an examination,

or on a request by any of the following

(a)

the child;

(b) the holder of parental responsibility or

another appropriate adult as referred to in articles

534AGE and 534AGN;

(c)

the child's lawyer.

(4) The conclusion of the medical examination shall

be recorded in writing and, where required, medical

assistance shall be provided

Provided that another medical examination shall

be carried out where the circumstances so require.

534AGI. (1) Questioning of children by the Executive

Police or other law enforcement or judicial authorities

during criminal proceedings shall be audio-visually

recorded where this is proportionate in the circumstances

of the case, taking into account, inter alia, whether a

lawyer is present or not and whether the child is deprived

of liberty or not, provided that the child's best interests

are always a primary consideration.

(2) In the absence of audiovisual recording,

questioning shall be recorded in another appropriate

manner, such as by written minutes which are duly

verified.

(3) Any audiovisual recording or records of

questioning of children in any other manner shall be kept

confidential and shall not be publicly disseminated.

(4) This article shall be without prejudice to the

possibility to ask questions for the sole purpose of the

identification of the child without audiovisual recording.

534AGJ. (1) The deprivation of liberty of a child, in

particular detention, at any stage of the proceedings shall

be imposed only as a measure of last resort and shall be

limited to the shortest appropriate period of time, taking

due account of the age and individual situation of the

child, and of the particular circumstances of the case.

(2) Any detention of a child shall be based on a

reasoned decision, which shall be subject to appeal.

(3) The decision referred to in sub-article (2) shall

be subject to periodic review by the Court acting ex

officio, commencing no later than six (6) months after the

decision imposing deprivation of liberty was adopted and

every six (6) months thereafter, for as long as the

decision remains in force

Provided that, without prejudice to judicial

independence, any decisions to be taken pursuant to this

sub-article shall be taken without undue delay.

534AGK. The Executive Police and any other law

enforcement or judicial authority, as the case may be,

shall, where possible, have recourse to measures

alternative to detention.

534AGL. (1) Children who are detained shall be held

separately from adults, unless it is considered to be in the

child's best interests not to do so.

(2) Children who are kept in police custody shall be

held separately from adults, unless

(a) it is considered to be in the child's best

interests not to do so; or

(b) in exceptional circumstances, it is not

possible in practice to do so, provided that children

are held together with adults in a manner that is

compatible with the child's best interests.

(3) Without prejudice to sub-article (1), when a

detained child reaches the age of eighteen (18), that

person may continue to be held separately from other

detained adults where warranted, taking into account the

circumstances of the person concerned, provided that this

is compatible with the best interests of children who are

detained with that person.

(4) Without prejudice to sub-article (1), and taking

into account sub-article (3), children may be detained

with young adults, unless this is contrary to the child's

best interests.

(5) When children are detained, the detention

authorities shall take appropriate measures to

(a) ensure and preserve their health and

their physical and mental development;

(b) ensure their right to education and

training, including where the children have

physical, sensory or learning disabilities;

(c) ensure the effective and

regular

exercise of their right to family life;

(d) ensure access to programmes that foster

their development and their reintegration into

society; and

(e) ensure respect for their freedom of

religion or belief

Provided that the measures taken pursuant to

this sub-article shall be proportionate and appropriate to

the duration of the detention.

(6) Paragraphs (a) and (e) of sub-article (5) shall

also apply to situations of deprivation of liberty other

than detention. The measures taken shall be

proportionate and appropriate to such situations of

deprivation of liberty.

(7) Paragraphs (b), (c), and (d) of sub-article (5)

shall apply to situations of deprivation of liberty other

than detention only to the extent that is appropriate and

proportionate in the light of the nature and duration of

such situations.

(8) Children who are deprived of liberty shall be

allowed to meet with the holder of parental responsibility

as soon as possible, where such a meeting is compatible

with investigative and operational requirements, without

prejudice to the nomination or designation of another

appropriate adult pursuant to article 534AGE or article

534AGN.

534AGM. (1) The Police and other law enforcement

and judicial authorities shall ensure that criminal

proceedings involving children are treated as a matter of

urgency and with due diligence.

(2) The Police and other law enforcement and

judicial authorities shall ensure that children are always

treated in a manner which protects their dignity and

which is appropriate to their age, maturity and level of

understanding, and which takes into account any special

needs, including any communication difficulties, that

they may have.

534AGN. (1) Children shall have the right to be

accompanied by the holder of parental responsibility

accompanied by

during court hearings in which they are involved.

(2) A child shall have the right to be accompanied

by another appropriate adult who is nominated by the

child and accepted as such by the Court where the

presence of the holder of parental responsibility

accompanying the child during court hearings

(a)

would be contrary to the child's best

interests;

(b) is not possible because, after reasonable

efforts have been made, no holder of parental

responsibility can be reached or his or her identity

is unknown; or

(c) would, on the basis of objective and

factual circumstances, substantially jeopardise the

criminal proceedings

Provided that where the child has not nominated

another appropriate adult, or where the adult that has

been nominated by the child is not acceptable to the

Court, the Court shall, taking into account the child's best

interests, designate another person to accompany the

child. That person may also be the representative of an

authority or of another institution responsible for the

protection or welfare of children.

(3) Where the circumstances which led to an

application of paragraphs (a), (b) or (c) of sub-article (2)

cease to exist, the child shall have the right to be

accompanied by the holder of parental responsibility

during any remaining court hearings.

(4) In addition to the right provided for under sub-

article (1), children shall have the right to be

accompanied by the holder of parental responsibility, or

by another appropriate adult as referred to in sub-article

(2), during stages of the proceedings other than court

hearings at which the child is present where the

competent law enforcement or judicial authority

considers that

(a) it is in the child's best interests to be

accompanied by that person; and

(b) the presence of that person will not

prejudice the criminal proceedings.

534AGO. (1) Children shall have the right to be

present at their trial and to participate effectively in the

trial, including the opportunity to be heard and to express

their views.

(2) Children who were not present at their trial shall

have the right to a new trial or to another legal remedy, in

accordance with, and under the conditions set out in Sub-

title XII of Part I of Book Second.

534AGP. The rights referred to in articles 534AGD,

534AGE, 534AGF and 534AGH, articles 534AGJ to

534AGN and article 570 shall apply mutatis mutandis, in

respect of children who are requested persons, upon their

arrest pursuant to European arrest warrant proceedings in

the executing Member State.

534AGQ. (1) The Minister responsible for home

affairs shall ensure that staff of law enforcement

authorities and of detention facilities who handle cases

involving children, receive specific training to a level

appropriate to their contact with children with regard to

children's rights, appropriate questioning techniques,

child psychology, and communication in a language

adapted to the child.

(2) Without prejudice to the independence of the

judiciary, the Minister responsible for justice shall take

a pp ro p ri at e m e as ure s t o e ns ure t h a t j u dg e s a n d

p rosecutors who deal with criminal proceedings

involving children have specific competence in that field,

effective access to specific training, or both.

(3) The Minister responsible for justice shall take

appropriate measures to promote the provision of

specific training as referred to in sub-article (2) to

lawyers who deal with criminal proceedings involving

children.".

Immediately after article 572 of the Code there shall be added Addition of new

the following new articles

572A. The court may upon the request of a suspect,

accused persons or of a requested persons referred to in

article 355AT(2)(c), where the circumstances so justify,

order that the advocate assigned to them be replaced.

572B. (1) The Executive Police and any other law

enforcement or judicial authority shall ensure that the

particular needs of vulnerable suspects, vulnerable

accused persons and vulnerable persons who are the

subject of European arrest warrant proceedings pursuant

to Framework Decision 2002/584/JHA are taken into

account in the application of the provisions of this Sub-

title.

(2) For the purposes of this Sub-title, the expression

"vulnerable person" shall have the same meaning as is

assigned to it by article 208AC(2).".

Passed by the House of Representatives at Sitting No. 317 of the 1st

April, 2020.

ANĠLU FARRUGIA

Speaker

RAYMOND SCICLUNA

Clerk of the House of Representatives

€ 2.16