ACT No. XVIII of 2023 AN ACT to safeguard the interests of persons who may be at risk of domestic violence by establishing a procedure which provides for the issuance of a domestic violence risk warning.

I assent.

(L.S.)

GEORGE VELLA

President

5th June, 2023

ACT No. XVIII of 2023

AN ACT to safeguard the interests of persons who may be at risk of

domestic violence by establishing a procedure which provides for the

issuance of a domestic violence risk warning.

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 Domestic Violence Short title and

commencement.

Prevention Act, 2023.

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

Minister responsible for the Police may by notice in the Gazette

establish and different dates may be so established for different

provisions and, or purposes of this Act.

In this Act, unless the context otherwise requires

Interpretation.

"applicant" means any person who initiates the procedure

in terms of this Act;

"application" means the request submitted to the Police to

initiate the procedure in terms of this Act;

"conduct certificate" means the conduct certificate issued

in accordance with the provisions of the Conduct Certificates

Ordinance;

"Minister" means the Minister responsible for the Police,

unless stated otherwise;

"domestic violence" shall have the same meaning assigned

to it by article 2 of the Gender-Based Violence and Domestic

Violence Act in so far as it relates to the applicant or to the

vulnerable person under this Act;

"domestic violence risk warning" means that information

disclosed by the Police to the person at potential risk in terms of

this Act;

"person at potential risk" means the person to whom a

domestic violence risk warning is issued by the Police in terms

of this Act;

"person of concern" means the person in relation to whom

the application is filed;

"Police" means the officers of the Malta Police Force

assigned with the Victim Support Agency in terms of the

provisions of article 3(2)(b) of the Victim Support Agency

(Establishment) Order;

"vulnerable person" means a person who is under the age

of sixteen (16), or who has a mental disorder or other condition,

or who is considered by the competent court to be particularly at

risk when taking into account the person’s age, the maturity, the

health, the mental disability and other conditions, including any

situation of dependence as well as the psychological state and, or

emotional state of the said person.

(1)

A person who is

(a) the spouse, civil union partner, or cohabitant of the

person of concern; or

(b)

in an informal relationship with the person of

concern;

and who believes that he may be at risk of domestic

violence from the person of concern, may submit an application

to the Police, requesting the issuance of a domestic violence risk

warning in terms of this Act

Provided that the parent or legal guardian of a vulnerable

person, who is in a relationship with a person of concern in terms of

sub-paragraphs (a) or (b), and who believes that the person of concern

may pose a risk of domestic violence to the vulnerable person, may

also submit an application to the Police, requesting the issuance of a

domestic violence risk warning in terms of this Act.

(2) Each applicant shall prove, to the satisfaction of the Police,

the existence of a relationship with the person of concern in terms of

sub-article (1), or, in the case of a parent or legal guardian, proof of

parentage or tutorship of the vulnerable person, as well as the

existence of a relationship between the vulnerable person and the

person of concern in terms of sub-article (1).

(3) Once the application is submitted, the Police shall hold an

initial meeting with the applicant.

(4) During the initial meeting, the Police shall assess the

application, verify the identity of the applicant and determine whether

the applicant fulfils all the necessary criteria for the purpose of

initiating the procedure in terms of this Act.

(5) The Police shall assure the applicant that his safety and that of

the vulnerable person, as the case may be, is of the utmost importance,

and that the person of concern shall not be informed of this procedure.

(6) The Police shall warn the applicant that the entire procedure

shall be kept confidential, and the application shall include a

declaration to this effect

Provided that if the applicant is not willing to make this

declaration, the Police shall not proceed any further with the

application.

(7) The Police shall inform the applicant that if, at any time

during the procedure, the Police believe that a crime is being

committed, or has been committed, the Police shall file a report in

accordance with the criminal investigation procedures, and in these

circumstances it may not be possible to maintain confidentiality.

(8) The Police shall provide the applicant with information on

available support services and the Police shall agree upon a safe means

of communication with the applicant.

(9) The Police shall give its final decision in terms of article 6

within seven (7) working days from the initial meeting through the

means of communication agreed upon pursuant to sub-article (8).

(10) If during the initial meeting, the Police determine that further

information is required or that the applicant or the vulnerable person,

as the case may be, does not qualify in terms of this Act, the Police

shall reject the application and note said decision in the records of the

case in terms of sub-article 7(4).

(11) The Police shall provide an electronic mechanism, which shall

be free of charge, by means of which a person may request the holding

of an initial meeting in accordance with sub-article (3), during which an

application may be submitted.

Throughout the procedure described in this Act, the Police

shall ensure that communication with the applicant and, or with the

vulnerable person, as the case may be, takes place in a language which

such person understands.

(1) Without prejudice to the Conduct Certificates

Ordinance, when the Police proceeds with the application in terms of

this Act, the Police shall request a copy of the conduct certificate of

the person of concern.

(2) If a conviction is registered in the conduct certificate of the

person of concern, the Police shall, in order to determine whether that

conviction relates to domestic violence, request, access and process

information

(a) that results from the register of criminal convictions

pursuant to the Conduct Certificates Ordinance;

(b)

registered by the Malta Police Force; or

(c)

registered by the Courts of Malta.

(3) Upon determining that the registered conviction is related to

domestic violence, the Police shall proceed with the issuance of a

domestic violence risk warning

Provided that before communicating the decision, the Police

officer concerned shall request his direct superior or another officer

designated for such purpose by the Commissioner of Police, to review

the said decision and either confirm and countersign, or overturn it

Provided further that any decision shall be kept in the records

of the case in terms of article 7(4), and if the original decision is

overturned, the reason thereof shall also be recorded.

(1)

Every

final

Police

decision

shall

be

verbally

communicated to the applicant and, in any case, the Police shall

clearly explain to the applicant the process which led to its decision.

(2) Where the Police conclude that a domestic violence risk

warning should not be issued, the Police shall communicate and

explain this to the applicant and, provide information related to

support services offered by governmental or non-governmental

organisations.

(3) Where the Police conclude that a domestic violence risk

warning should be issued, the Police shall

(a) communicate and explain this to the applicant and

the vulnerable person, as the case may be;

(b) explain that due to a domestic violence conviction

registered in the person of concern’s conduct certificate, there is

a potential risk of domestic violence; and

(c) provide information related to support services

offered by governmental or non-governmental organisations

Provided that when a domestic violence risk warning is

issued, the Police shall not divulge any further information other than

that which is strictly necessary for the purposes of this Act

Provided further that when the application is filed by a parent

or legal guardian of a vulnerable person, the Police shall serve a

domestic violence risk warning to the vulnerable person in the

applicant’s presence and, if necessary, also in the presence of a

professional trained by the agency in accordance with the Gender- Cap. 581.

Based Violence and Domestic Violence Act.

(1) Nothing in this Act shall prejudice the applicability of Data protection.

the Data Protection (Processing of Personal Data by Competent S.L. 586.08.

Authorities for the purposes of the Prevention, Investigation,

Detection or Prosecution of Criminal Offences or the Execution of

Criminal Penalties) Regulations.

(2) The Police, acting in its capacity of a controller in terms of

regulation 2 of the Data Protection (Processing of Personal Data by S.L. 586.08.

Competent Authorities for the Purposes of the Prevent ion,

Investigation, Detection or Prosecution of Criminal Offences or the

Execution of Criminal Penalties) Regulations, shall perform all the

relevant data processing operations which are strictly necessary and

proportionate to the objectives pursued in terms of this Act.

(3) The processing of personal data, including the processing of

special categories of personal data, for the purposes of this Act shall

fully comply with the principles relating to the processing of personal

data in accordance to regulation 4 of the Data Protection (Processing

of Personal Data by Competent Authorities for the purposes of the

Prevention, Investigation, Detection or Prosecution of Criminal

Offences or the Execution of Criminal Penalties) Regulations.

(4) The Police shall compile and maintain a record of each

application and each process, irrespective of the outcome, and such

records shall be retained for a period of three (3) years and shall not be

used or processed for any other purpose, except for verification

purposes in relation to the same case for which they were compiled.

(1) The controller, taking into account the nature, scope,

context and purposes of processing as well as the risks of varying

likelihood and severity of the rights and freedoms of the data subjects,

both at the time of the determination of the means for processing as

well as at the time of the processing itself, shall implement appropriate

technical and organisational measures, in an effective manner and to

integrate the necessary safeguards into the processing, in order to

protect the rights of the data subjects and to ensure a level of security

appropriate to the risk.

(2) The data protection officer designated by the controller in

terms of regulation 32 of the Data Protection (Processing of Personal

Data by Competent Authorities for the Purposes of the Prevention,

Investigation, Detection or Prosecution of Criminal Offences or the

Execution of Criminal Penalties) Regulations shall be involved and

consulted about any case and in a timely manner on any issues in

relation to the protection of personal data processed for the purposes of

this Act.

(3) For the purpose of ensuring and in order to be able to

demonstrate that the processing of personal data is performed in

accordance with the provisions of Data Protection (Processing of

Personal Data by Competent Authorities for the purposes of the

Prevention, Investigation, Detection or Prosecution of Criminal

Offences or the Execution of Criminal Penalties) Regulations, the

controller shall implement the appropriate data protection policies,

which policies shall be periodically reviewed and updated where

necessary.

(4) Access to any personal data, including special categories of

personal data processed for the purposes of this Act, shall be reserved

exclusively to the duly authorised staff of the controller. Access shall

be limited to the extent needed for the performance of the controller’s

functions in accordance with the purposes of the Act, and to what is

necessary and proportionate to the objectives pursued in terms of this

Act.

(1) The controller may restrict the rights and obligations Restriction of

provided for in Part III of the Data Protection (Processing of Personal the

data subjects.

Data by Competent Authorities for the purposes of the Prevention, S.L. 586.08.

Investigation, Detection or Prosecution of Criminal Offences or the

Execution of Criminal Penalties) Regulations, where these restrictions

are considered as a necessary and proportionate measure for the

performance of the functions of the controller pursuant to this Act.

(2) The data protection officer shall be consulted by the controller

in any case in a timely manner during the entire process of applying

the restriction.

(3) The controller shall apply the restriction referred to in sub-

article (1) for as long as the reasons justifying them remain applicable

following a necessity and proportionality test. The reasons justifying

the restrictions shall be documented and made available to the

Information and Data Protection Commissioner, when and as required.

(4) Where the reasons for a restriction no longer apply, the

controller shall lift the restriction and inform the data subject

concerned accordingly and comply with the rights and obligations

provided for in Part III of the Data Protection (Processing of Personal S.L. 586.08.

Data by Competent Authorities for the purposes of the Prevention,

Investigation, Detection or Prosecution of Criminal Offences or the

Execution of Criminal Penalties) Regulations.

(5) The controller shall review the application of the restriction

referred to in this article and depending on the outcome of said review

inform the data subject accordingly.

The Minister may make regulations to implement and to give Power of the

better effect to the provisions of this Act, and without prejudice to the Minister

make

generality of the foregoing, may provide for any consequential matter, regulations.

incidental to or connected with the provisions of this Act.

Passed by the House of Representatives at Sitting No. 129 of the

31st May, 2023.

ANĠLU FARRUGIA

Speaker

RAYMOND SCICLUNA

Clerk of the House of Representatives

€0.90