ACT No. XLI of 2020 AN ACT to continue implementing reforms in the Justice Sector by providing for the judicial review of decisions not to prosecute and other decisions of the Attorney General.

I assent.

(L.S.)

GEORGE VELLA

President

7th August, 2020

ACT No. XLI of 2020

AN ACT to continue implementing reforms in the Justice Sector by

providing for the judicial review of decisions not to prosecute and

other decisions of the Attorney General.

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 Judicial Review Short title and

(Decisions not to Prosecute and Other Decisions of the Prosecution) commencement.

Act, 2020.

(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 provisions and

different purposes of this Act.

Part I

Amendments to the Constitution of Malta

This Part amends the Constitution of Malta and it shall be Amendments to

read and construed as one with the Constitution of Malta, hereinafter the

of Malta.

in this Part referred to as "the Constitution".

In sub-article (3) of article 91 of the Constitution, the words

"the Attorney General shall not be subject to the direction or control of

any other person or authority" shall be substituted by the words "the

Attorney General shall have Constitutional independence and shall not

be subject to the direction or control of any other person or authority

except insofar as a law may provide

(a) for the judicial review of a decision not to prosecute

or of any other decision taken by the Attorney General, on the

grounds of illegality or unreasonableness; or

(b) for the judicial review on the basis of criteria

established by law of a decision of the Attorney General that a

prosecution should take place in a superior court of criminal

jurisdiction where the punishment applicable would be higher

than that which would apply had the same offence been tried

before an inferior court of criminal jurisdiction.".

Part II

Amendments to the Criminal Code

This Part amends the Criminal Code and it shall be read and

construed as one with the Criminal Code, hereinafter in this Part

referred to as "the Code".

Immediately after sub-article (3) of article 541 of the Code

there shall be added the following new sub-article

"(4) (a) In cases where for the exercise of the

criminal action the decision to prosecute is vested in the

Attorney General, any injured party may within a period

of one month from when he knows or could have known,

whichever is the earlier, of the decision of the Attorney

General not to prosecute, request the Attorney General in

writing, and giving reasons, to reconsider the decision.

(b) If within one month from the request for

re-consideration referred to in paragraph (a) the

Attorney General either informs the injured party

that he has reconsidered the case and decided to

confirm his decision against the institution of

criminal proceedings or fails to reply to the injured

party then the injured party shall be entitled to seek

judicial review of the decision of the Attorney

General not to prosecute in accordance with the

provisions of article 469B of the Code of

Organization and Civil Procedure

Provided that for the purposes of this sub-article,

the Auditor General, the Commissioner for Standards in

Public Life, the Permanent Commission Against

Corruption and the Ombudsman shall be entitled to make

any claim and to exercise any action which according to

this sub-article pertains to the injured party when they shall

have reported any corrupt practice as defined in the

Permanent Commission Against Corruption Act to the

Attorney General.".

The proviso to sub-article (6) of article 569 of the Code shall Amendment of

be substituted by the following

"Provided that where the Attorney General shall have

directed that no proceedings are to be taken, the provisions of

sub-article (4) of article 541 shall apply.".

Part III

Amendments to the Code of Organization and Civil Procedure

This Part amends the Code of Organization and Civil Amendments to

Procedure and it shall be read and construed as one with the Code of the

Organization and Civil Procedure, hereinafter in this Part referred to as and

"the Code".

Immediately after article 469A of the Code there shall be Addition of new

added the following new article

469B. (1) Where the Attorney General takes a

decision

decision of the

(a) not to prosecute in accordance with the

powers conferred upon him by any law; or

(b) not to allow the inspection or the issuing

of copies of a procès-verbal or of any depositions or

documents filed therewith in terms of the proviso to

article 518 of the Criminal Code,

the courts of justice of civil jurisdiction, giving due

account to the constitutional independence of the

Attorney General, may enquire into the validity of the said

decision and declare such decision null, invalid or without

effect and consequently send back the matter to the

Attorney General for review in accordance with the

judgment of the court only in the case of a finding that the

decision is not properly directed on legal considerations

or is unreasonable in that it is not open to a reasonable

prosecutor.

(2) An action for judicial review of a decision of the

Attorney General as provided in paragraph (a) of sub-

article (1) may be filed only by the injured party and an

action in terms of paragraph (b) of sub-article (1) shall be

filed by the claimant within two months from when the

injured party or the claimant becomes aware or could have

become aware of the decision, whichever is the earlier

Provided that where the law provides for a

procedure whereby the Attorney General may be

requested to conduct an internal review of the decision,

the said period of two months shall commence to run as

from the date when the injured party is informed of the

results of the said review

Provided further that for the purposes of this

article, the Auditor General, the Commissioner for

Standards in Public Life, the Permanent Commission

Against Corruption and the Ombudsman shall be entitled

to make any claim and to exercise any action which

according to this article pertains to the injured party when

they shall have reported any corrupt practice as defined in

the Permanent Commission Against Corruption Act to the

Attorney General.

(3) Judicial review cannot be made where an

agreement has been reached with the competent

authorities of another country that the courts of that

country shall exercise jurisdiction over the crime.".

Passed by the House of Representatives at Sitting No. 366 of the

29th July, 2020.

CLAUDETTE BUTTIGIEG

Deputy Speaker

RAYMOND SCICLUNA

Clerk of the House of Representatives

€0.54