Regulations, 2009

L.N. 268 of 2009

CRIMINAL CODE

(CAP. 9)

Financial Penalties (Execution in the European Union)

Regulations, 2009

IN exercise of the powers conferred by article 628A of the

Criminal Code, the Minister for Justice and Home Affairs has made

the following regulations:-

The title of these regulations is the Financial Penalties

(Execution in the European Union) Regulations, 2009.

In these regulations, unless the context otherwise requires-

"the Arrangement" means the Council Framework Decision

2005/214/JHA of the 24 th February, 2005 on the application of the

principle of mutual recognition to financial penalties;

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

the Arrangement, purporting to reproduce details setting out the

information required by the same form;

"the Code" means the Criminal Code;

"decision" means a final decision requiring a financial penalty

to be paid by a natural or legal person where the decision was made

(a)

a court of the issuing State in respect of a criminal

offence under the law of the issuing State;

(b)

an authority of the issuing State other than a court

in respect of a criminal offence under the law of the issuing

State, provided that the person concerned has had an

opportunity to have the case tried by a court having jurisdiction

in particular in criminal matters;

(c)

an authority of the issuing State other than a court

in respect of acts which are punishable under the national law of

the issuing State by virtue of being infringements of the rules of

law, provided that the person concerned has had an opportunity

to have the case tried by a court having jurisdiction in particular

in criminal matters;

(d)

a court having jurisdiction in particular in criminal

matters, where the decision was made regarding a decision as

referred to in paragraph (c);

"the European Union" means the European Union as referred to

in the Treaty;

"executing State" means the Member State of the European

Union to which a decision has been transmitted for the purpose of

enforcement;

"financial penalty" means the obligation to pay

(a)

a sum of money on conviction of an offence

imposed in a decision;

(b)

compensation imposed in the same decision for the

benefit of victims even where the victim is not a civil party to

the proceedings and the court is acting in the exercise of its

criminal jurisdiction;

(c)

a sum of money in respect of the costs of court or

administrative proceedings leading to the decision;

(d)

a sum of money to a public fund or a victim support

organization, imposed in the same decision;

"issuing authority" means the authority which issued a decision

within the meaning of the Arrangement;

"issuing State" means the Member State of the European Union

in which a decision within the meaning of the Arrangement was

issued;

"offence" means conduct which is punishable under national

law by virtue of being an infringement of the rules of law;

"scheduled country" means a country listed in Schedule 1;

"scheduled offence" is any offence in the list of offences set out

in Schedule 2;

"the Treaty" shall have the same meaning assigned to it by Cap. 460.

article 2 of the European Union Act.

These regulations shall be limited to the transmission Scope.

between Malta and a scheduled country of a decision imposing a

financial penalty, and shall apply to decisions issued after the 22 nd

March, 2007.

For the purposes of these regulations

(a)

the Attorney General shall be competent to receive

decisions issued in the issuing State and to transmit to the

executing State decisions issued in Malta by the courts of

criminal justice;

(b)

the courts of criminal justice shall be competent to

issue a decision.

(1)

A decision shall be transmitted with the certificate

containing the information prescribed therein, by any means capable

of producing a written record under conditions permitting the

ascertainment of its authenticity.

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

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

shall be sent to the executing State.

A decision shall contain a statement that the financial

penalty relates to

(a)

conduct which is a scheduled offence

Provided that in such cases there shall be no verification

whether the conduct is a criminal offence in Malta; or

(b)

conduct which would constitute an offence under

the law of Malta if it occurred in Malta

Provided that the description of the offence shall not be

regarded as material if the offence under the law of Malta and the law

of the issuing State are substantially of the same nature.

Where the Attorney General receives a decision within the

meaning of these regulations the Attorney General shall, in his own

individual discretion and subject to the provisions of regulation 8,

issue a certificate to the effect that the decision is one referred to in

the Arrangement and such certificate shall be conclusive of its

contents.

(1)

A decision shall not be recognized by the Attorney

General if:-

(a)

the certificate is not produced, is incomplete or

manifestly does not correspond to the decision;

(b)

the decision against the sentenced person in respect

of the same acts has

(i)

been delivered in Malta, or

(ii) in any State other than Malta or in the issuing

State, provided the decision has been executed;

(c)

the act on which the decision is based is not one

falling within the list of scheduled conduct and does not

constitute an offence under the law of Malta;

(d)

the execution of the decision is barred by

prescription according to the law of Malta and the decision

relates to acts which fall within the jurisdiction of the Maltese

criminal courts whether at first instance or on appeal;

(e)

the decision relates to acts which

(i) are regarded by the laws of Malta as having

been committed in whole or in part on Maltese territory or

in a place treated as such, or

(ii) have been committed outside the territory of

the issuing State and the law of Malta does not allow

prosecution for the same offences when committed outside

its territory;

(f)

there is an immunity under the law of Malta which

makes it impossible to execute the decision;

(g)

the decision has been imposed on a person with

regard to acts for which he would have been exempted from

criminal responsibility under the criminal law of Malta by

reason of his age;

(h)

according to the certificate the person concerned

(i) in case of a written procedure was not, in

accordance with the law of the issuing State, informed

personally or through a representative, competent

according to national law, of his right to contest the case

and of time limits of such a legal remedy; or

(ii) did not appear personally at the trial resulting

in the decision, unless the said certificate states that the

person, in accordance with procedural requirements

defined in the law of the issuing State

(a) in due time was summoned in person and

thereby informed of the scheduled date and place of

the trial which resulted in the decision, or by other

means actually received official information of the

scheduled date and place of that trial in such a

manner that it was unequivocally established that he

was aware of the scheduled trial and was informed

that a decision may be handed down if he does not

appear for the trial; or

(b) being aware of the scheduled trial, had

given a mandate to his legal counsel appointed by the

said person or by the State, to defend him at his trial,

and was indeed defended by the said legal counsel at

the trial; or

(c) after being served with the decision and

being expressly informed of the right to a retrial, or

an appeal, in which he has the right to participate and

which allows the merits of the case, including fresh

evidence, to be re-examined and which may lead to

the original decision being reversed, he expressly

stated that he does not contest the decision or he did

not request a retrial or an appeal within the

applicable time-frame; or

(iii) the person did not appear in person, unless

the certificate states that the said person, having been

expressly informed about the proceedings and the

possibility to appear in person in the trial, expressly

waived his right to an oral hearing and has expressly

indicated that he does not contest the case.

(i)

the financial penalty is less than seventy euro

(j)

if the certificate gives rise to an issue that

fundamental rights or fundamental legal principles enshrined in

the Treaty have been infringed.

(2) Before making a decision refusing to recognise and

execute a decision on any of the grounds mentioned in sub-regulation

(1)(a), (d) and (h), whether totally or in part, the Attorney General

shall consult the competent authorities of the issuing State by any

appropriate means, and where appropriate, shall ask them to supply

any necessary information without delay.

(1)

Where a certificate has been issued by the Attorney Execution after

General under regulation 7, the provisions of this regulation shall issue

certificate

apply.

(2) Without the need of any further authority other than that

conferred by this regulation, the decision shall be transmitted to the

Registrar of Courts for execution and shall be served on the sentenced

person.

Where the decision relates to acts which were not carried Attorney

out within the territory of the issuing State and refers to acts which General

direct Court

fall within the jurisdiction of the Maltese criminal courts, the Registrar

apply to Court

Attorney General may direct the Registrar of Courts to apply to the requesting

court requesting the reduction of the amount of the financial penalty reduction

financial

to the maximum amount provided for such acts under Maltese law.

penalty.

(1)

The following provisions shall apply where a Effect of

decision.

decision is executed by the Registrar of Courts under regulation 9.

(2) The decision shall have the same effect as a sentence

ordering the payment of a financial penalty under the Code as the

case may be, and the provisions of the Code shall mutatis mutandis

apply to the said decision, sohowever that any reference to a financial

penalty as defined in these regulations shall be construed as a

reference to the payment of a financial penalty in that Code.

(1)

The financial penalty imposed in the decision may Determination

be converted into Euro currency, provided that the rate of exchange of

enforced.

applied must be that of the date on which the penalty was imposed in

the issuing State.

(2) Where the sentenced person is able to furnish proof of

payment, totally or in part, in any State, any part of the penalty

recovered in whatever manner in any State, shall be deducted in full

from the amount which is to be enforced

Provided that the State wherein it is claimed that payment

has been made, shall be consulted as to the veracity of the claim of

payment.

(1)

Where it is not possible to enforce a decision, Conversion of

either totally or in part, and the issuing State has allowed for the pecuniary

penalties into

application of alternative sanctions in the certificate referred to in imprisonment.

regulation 5, the Criminal Court may convert the financial penalty in

accordance with the provisions of the Code relating to the conversion

of financial penalties into imprisonment under that Code.

(2) The provisions of the Code dealing with the conversion of

financial penalties shall mutatis mutandis apply to the conversion of a

financial penalty under these regulations, sohowever that any

reference to the conversion of a financial penalty in that Code shall be

construed as a reference to a financial penalty under these

regulations.

(3) Any conversion which takes place under this regulation

shall not exceed the maximum amount stated in the certificate.

The enforcement of a decision shall be terminated in any

of the following cases

(a)

when information is received from the issuing State

of any measure as a result of which the decision ceases to be

enforceable or is withdrawn for any reason;

(b)

when amnesty or pardon has been granted under

the law of Malta or under the law of the issuing State.

The issuing authority shall be informed by any means

which leaves a written record of

(a)

the transmission of a decision to the authority

competent to recognise and take measures to execute a decision

when the decision has been received by an authority which does

not have the said competence;

(b)

any decision not to recognise and execute a

decision, for the reasons referred to in regulation 8;

(c)

the total or partial non-execution of the decision,

for the reasons referred to in sub-regulations (11) and (13);

(d)

the execution of the decision as soon as execution

is completed;

(e)

the application of alternative sanctions in terms of

regulation 13.

(1)

The provisions of this regulation shall apply where

a person has been sentenced by a court of criminal justice to the

payment of a financial penalty, and the said person is a resident, has

property or income or, in the case of a body corporate, is registered in

another State.

(2) The court shall issue a decision, and such decision shall

have the same effect as a sentence ordering the payment of a financial

penalty, as applicable, under the Code, and the provisions of the said

Code shall mutatis mutandis apply to a decision issued by virtue of

this regulation.

(1)

A decision issued under regulation 16 shall Details of

outgoing

contain

decision.

(a)

a statement indicating whether the conduct to

which the decision refers to is scheduled conduct; or

(b)

a statement of the offence.

(2) A decision shall only be transmitted to one executing State

at any one time.

(1)

Upon the issue of a decision by a court of criminal Appendices to

the decision.

justice, the decision shall be sent to the Attorney General.

(2) The Attorney General shall append the certificate to a

decision received under regulation 16.

(3) The Attorney General shall sign and certify as authentic

the contents of the certificate.

(1)

If a decision issued under regulation 16 has been Effects when

transmitted to the foreign authorities, the execution of the decision decision

transmitted.

may not continue before the courts of criminal justice.

(2) The right of execution shall revert to the courts if

information is received from the executing State of the total or partial

non-execution of the decision in that State for any of the following

reasons

(a)

the grounds referred to in regulation 8(1)(a), (c) to

(j), both inclusive;

(b)

if amnesty, pardon or review of sentence has been

granted;

(c)

termination of enforcement of the decision.

Schedule 1

(Regulation 3)

Austria

Czech Republic

Denmark

Estonia

Finland

France

Latvia

Lithuania

Hungary

Romania

Slovenia

Spain

United Kingdom.

Schedule 2

(Regulation 6)

participation in a criminal organisation;

terrorism;

trafficking in human beings;

sexual exploitation of children and child pornography;

illicit trafficking in narcotic drugs and psychotropic

substances;

illicit trafficking in weapons, munitions and explosives;

corruption;

fraud, including that affecting the financial interests of the

European Communities within the meaning of the

Convention of 26 July 1995 on the protection of the

European Communities' financial interests;

laundering of the proceeds of crime;

counterfeiting currency, including of the euro;

computer-related crime;

environmental crime, including illicit trafficking in

endangered animal species and in endangered plant

species and varieties;

facilitation of unauthorised entry and residence;

murder, grievous bodily injury;

illicit trade in human organs and tissue;

kidnapping, illegal restraint and hostage-taking;

racism and xenophobia;

organised or armed robbery;

illicit trafficking in cultural goods, including antiques and

works of art;

swindling;

racketeering and extortion;

counterfeiting and piracy of products;

forgery of administrative documents and trafficking

therein;

forgery of means of payment;

illicit trafficking in hormonal substances and other growth

promoters;

illicit trafficking in nuclear or radioactive materials;

trafficking in stolen vehicles;

rape;

arson;

crimes within the jurisdiction of the International

Criminal Court;

unlawful seizure of aircraft/ships;

sabotage;

conduct which infringes road traffic regulations, including

breaches of regulations pertaining to driving hours and

rest periods and regulations on hazardous goods;

smuggling of goods;

infringements of intellectual property rights;

threats and acts of violence against persons, including

violence during sport events;

criminal damage;

theft;

offences established by the issuing State and serving the

purpose of implementing obligations arising from

instruments adopted under the EC Treaty or under Title

VI of the EU Treaty.