Decisions on Supervision Measures

L.N. 249 of 2013

CRIMINAL CODE

(CAP. 9)

Decisions on Supervision Measures

(Execution in the European Union) Regulations, 2013

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

Criminal Code, the Parliamentary Secretary for Justice has made the

following regulations:-

The title of these regulations is the Decisions on Citation.

Supervision Measures (Execution in the European Union)

Regulations, 2013.

In these regulations, unless the context otherwise requires - Definitions.

"the Arrangement" means the Council Framework Decision

2009/829/JHA of 23rd October, 2009 on the application, between

Member States of the European Union, of the principle of mutual

recognition to decisions on supervision measures as an alternative to

provisional detention;

"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, set out in Schedule 2;

"decision on supervision measures" means an enforceable

decision taken in the course of criminal proceedings by a competent

authority of the issuing State in accordance with its national law and

procedures and imposing on a natural person, as an alternative to

provisional detention, one or more supervision measures;

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

in the Treaty;

"executing State" means the Member State in which supervision

measures are monitored;

"issuing State" means the Member State in which a decision on

supervision measures has been issued;

"relevant offence" means

(a)

a scheduled offence; or

(b)

any other offence liable to the punishment of

imprisonment or of detention for a term of more than one year;

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

"supervision measures" means obligations and instructions

imposed on a natural person, in accordance with the national law and

procedures of the issuing State and includes

(a)

an obligation for the person to inform the

competent authority in the executing State of any change of

residence, in particular for the purpose of receiving a summons

to attend a hearing or a trial in the course of criminal

proceedings;

(b)

an obligation not to enter certain localities, places

or defined areas in the issuing or executing State;

(c)

an obligation to remain at a specified place, where

applicable during specified times;

(d)

an obligation containing limitations on leaving the

territory of the executing State;

(e)

an obligation to report at specified times to a

specific authority;

(f)

an obligation to avoid contact with specific persons

in relation with the offence allegedly committed;

(g)

an obligation to deposit a certain sum of money or

to give another type of guarantee, which may either be provided

through a specified number of instalments or entirely at once;

(h)

an obligation to undergo therapeutic treatment or

treatment for addiction;

"the Treaty" shall have the same meaning assigned to it by

article 2 of the European Union Act.

These regulations shall be limited to the transmission and

execution of decisions on supervision measures between Malta and a

Member State of the European Union and shall apply to decisions on

supervision measures received in Malta after the 1st December 2012.

For the purposes of these regulations

(a)

the Attorney General shall be competent to receive

decisions on supervision measures issued in the issuing State

and to transmit to the executing State decisions on supervision

measures issued in Malta by a court of criminal jurisdiction, and

(b)

a court of criminal jurisdiction shall be competent

to issue decisions on supervision measures.

(1)

A decision on supervision measures shall be Mode of

transmitted with the certificate provided for in Schedule 2 containing transmission.

the information prescribed therein, by any means capable of

producing a written record under conditions allowing the executing

State to establish authenticity.

(2) The certificate shall be in either the Maltese or English

language

Provided that it shall not be necessary for the decision on

supervision measures to be in either the Maltese or English language.

(3) The original of the decision on supervision measures, or a

certified copy thereof, and the original of the certificate shall be

transmitted to the executing State if it so requires.

(1)

A decision on supervision measures may be Procedure for

forwarded to the Member State in which the person to whom the the

of decision.

decision applies is lawfully and ordinarily residing in cases where the

person, having been informed about the measures concerned,

consents to return to that State.

(2) Upon the request of the person to whom the decision

applies, a decision on supervision measures may be forwarded to

another Member State, other than that in which the person is lawfully

and ordinarily residing, on the condition that the latter State has

consented to such forwarding.

(3) The decision on supervision measures together with the

certificate shall only be forwarded to one executing State at any one

time.

(1)

A decision on supervision measures shall contain a Details of

decisions on

statement that the decision relates to

supervision

measures.

(a)

conduct which -

(i)

is a scheduled offence; and

(ii) carries a sentence of imprisonment or another

form of detention of a maximum period of at least three

years in the issuing State

Provided that in such cases there shall be no

verification of the double criminality of the act; or

(b)

conduct which -

(i) would constitute an offence under the law of

Malta if it occurred in Malta; and

(ii) is punishable under the laws of Malta with

imprisonment or another form of detention for a term of

twelve months or a greater punishment.

(2) In determining for the purposes of this regulation whether

an offence falls within the requirements of sub-regulation (1)(b)(i) -

(a)

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;

(b)

if the conduct relates to a tax or duty, it is

immaterial that the law of Malta does not impose the same kind

of tax or duty or does not contain rules of the same kind as those

of the law of the issuing State;

(c)

if the conduct relates to customs or exchange, it is

immaterial that the law of Malta does not contain rules of the

same kind as those of the law of the issuing State.

(3) The certificate accompanying the decision shall include,

apart from any of the measures referred to in paragraphs (a) to (f) of

the definition "supervision measures" in regulation 2, only such other

measures as would have been notified by the executing State in

accordance with Article 8(2) of the Arrangement, and shall indicate

(a)

where applicable, the length of time to which the

decision on supervision measures applies and whether a renewal

of this decision is possible; and

(b)

the provisional length of time for which the

monitoring of the supervision measures is likely to be needed,

taking into account all the circumstances of the case that are

known when the decision on supervision measures is forwarded.

Where the Attorney General receives a decision on

supervision measures within the meaning of these regulations, the

Attorney General shall, in his own individual judgement and subject

to the provisions of regulation 9, issue a certificate to the effect that

the authority which issued a decision on supervision measures has the

function of issuing decisions on supervision measures in the issuing

State and such certificate shall be conclusive of its contents.

(1)

A decision on supervision measures shall not be Grounds for

non-recognition.

recognised by the Attorney General if

(a)

the certificate provided for in Schedule 2 is not

produced, is incomplete or manifestly does not correspond to

the decision on supervision measures and is not completed or

corrected within a reasonable time as may have been established

by the Attorney General and communicated to the issuing State;

(b)

the person to whom the decision refers is not

lawfully and ordinarily residing in Malta or in any other case

there has been no agreement to recognise the decision or where

the supervision measures sought to be monitored are not

amongst those notified by Malta in accordance with Article 8(2)

of the Arrangement;

(c)

recognition of the decision on supervision

measures would be contrary to the principle of ne bis in idem;

(d)

the act on which the decision on supervision

measures is based is not one falling within the list of scheduled

conduct and does not constitute an offence under the law of

Malta;

(e)

the execution of the decision on supervision

measures is barred by prescription according to the law of Malta

and the acts constituting the offence for which the decision was

issued fall within the jurisdiction of the Maltese courts;

(f)

there is an immunity or privilege under the law of

Malta which prevents the monitoring of the supervision

measures;

(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)

in the event of a breach of the supervision measures

a request for extradition would be refused in accordance with

Extradition (Designated Foreign Countries) Order.

(2) The Attorney General shall consult with the authorities of

the issuing State when he makes a decision to refuse recognition of

the decision on supervision measures based on the grounds listed in

sub-regulation (1)(a), (b) and (c).

Where a certificate has been issued by the Attorney

General under regulation 8, and without the need of any further

authority other than the authority conferred by this regulation, the

decision on supervision measures shall be transmitted to the courts of

criminal jurisdiction for execution.

(1)

The following provisions of this regulation shall

apply where a decision is transmitted to a court of criminal

jurisdiction under regulation 10.

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

granting temporary release from custody, and the provisions of the

Criminal Code shall mutatis mutandis apply to the said decision so

however that any reference to a decision on supervision measures as

defined in these regulations shall be construed as a reference to a

decision granting bail in that Code.

(3) A court of criminal jurisdiction shall, without delay and no

later than fifteen working days from the date of receipt of the decision

on supervision measures, take all necessary measures for the

monitoring of the supervision measures to commence and shall serve

such a decision on the person to whom the supervision measures

refer

Provided that if a legal remedy has been introduced against

the enforcement of the decision, the time limit within which to take

the necessary measures shall be extended by a further twenty days.

(1)

Where the nature of the supervision measures is

incompatible with the laws of Malta, the court of criminal jurisdiction

may adapt the said measures in line with the types of supervision

measures which apply, under the laws of Malta, to equivalent

offences.

(2) The adapted supervision measure shall correspond as far as

possible to that imposed in the issuing State and shall not be more

severe than the supervision measure which was originally imposed.

(1)

The issuing authority shall remain competent to

monitor the supervision measures imposed until such time as the

executing authority recognises the decision on supervision measures

forwarded to it.

(2) The competence for monitoring supervision measures shall

revert back to the issuing authority

(a)

where the person concerned has established his

lawful and ordinary residence in a State other than the executing

State;

(b)

where the issuing State has notified the executing

State of the withdrawal of the certificate pursuant to Article

13(3) of the Arrangement;

(c)

where the issuing authority has modified the

supervision measure and the executing State has refused to

monitor the modified measure since it is not one to which

reference is made in the definition "supervision measures" in

regulation 2;

(d)

when the maximum period within which the

supervision measures can be monitored in the executing State

has expired;

(e)

where the executing authority has informed the

issuing State that it has stopped monitoring the supervision

measures.

The issuing authority shall be informed by any means Information to

issuing State.

which leaves a written record

(a)

of 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)

of any change of residence of the person to whom

the supervision measures refer;

(c)

of the maximum length of time during which the

supervision measures can be monitored under the laws of Malta;

(d)

of the fact that it is in practice impossible to

monitor the supervision measures for the reason that, after

transmission of the decision on supervision measures and the

certificate, the person cannot be found in Malta;

(e)

of the fact that a legal remedy has been introduced

against a decision to recognise a decision on supervision

measures;

(f)

of the final decision to recognise the decision on

supervision measures and take all necessary measures for the

monitoring of the supervision measures;

(g)

of any decision to adapt the supervision measures

in accordance with regulation 12;

(h)

where it is not possible in exceptional

circumstances for the executing authority to comply with the

time limits laid down in regulation 11 giving reasons for the

delay and indicating when a final decision is expected to be

taken;

(i)

of any breach of a supervision measure and any

other finding which could result in taking any subsequent

decision referred to in regulation 18(1)

Provided that in such case notice shall be given

using the form set out in Annex II in the Arrangement.

Where the time period for the monitoring of the

supervision measure in the executing State is due to expire, the

issuing authority may request the executing authority to extend the

time period for the monitoring of the supervision and indicate the

time for which the extension is required.

Any supervision measures being monitored by a court of

criminal jurisdiction shall immediately end upon notification that the

certificate relating to a decision on supervision measures provided for

in Schedule 2 has been withdrawn.

(1)

Where a decision on supervision measures is made

by a court of criminal jurisdiction in respect of a natural person

undergoing criminal proceedings who is lawfully and ordinarily

resident in another Member State and the said person has consented to

the forwarding of that decision to the latter State, or in any other case

and upon the request of the said person, where another Member State

has agreed to recognise the decision on supervision measures, the

provisions of this regulation shall apply.

(2) Upon the issue of a decision on supervision measures by a

court of criminal jurisdiction, the Attorney General shall append to

the decision

(a)

the certificate provided for in Schedule 2

purporting to reproduce details setting out the information

required by the same certificate;

(b)

a statement indicating that the decision has been

issued, apart from any of the measures referred to in paragraphs

(a) to (f) of the definition "supervision measures" in regulation

2, only in relation to such other measures as would have been

notified by the executing State in accordance with Article 8(2)

of the Arrangement and

(i) where applicable, the length of time to which

the decision on supervision measures applies and whether

a renewal of this decision is possible; and

(ii) on an indicative basis, the provisional length

of time for which the monitoring of the supervision

measures is likely to be needed, taking into account all the

circumstances of the case that are known when the

decision on supervision measures is forwarded.

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

the contents of the certificate.

(4) For purposes of this regulation, a decision granting bail

shall be construed as a reference to a decision on supervision

measures referred to under these regulations.

(1)

The issuing authority shall, in accordance with its Competence of

laws, have the competence to take all subsequent decisions relating to issuing

and discretion

a decision on supervision measures, including

of executing

authority.

(a)

the renewal, review and withdrawal of the decision

on supervision measures;

(b)

the modification of the supervision measures;

(c)

issuing an arrest warrant or any other enforceable

judicial decision having the same effect.

(2) Where the issuing authority has modified the supervision

measures in accordance with sub-regulation (1)(b), the executing

authority may

(a)

adapt these modified measures in accordance with

regulation 12; or

(b)

refuse to monitor the modified supervision

measures if these measures do not fall within the types of

supervision measures referred to in the definition thereof in

regulation 2.

(3) The competence of the issuing authority in issuing a

supervision measure pursuant to sub-regulation (1) shall be without

prejudice to proceedings that may be commenced in the executing

State against the person concerned in relation to criminal offences

committed by him other than those on which the decision on

supervision measures is based.

The Extradition (Designated Foreign Countries) Order

shall be amended as follows

(a)

immediately after sub-article (8) of article 59

thereof, there shall be added the following new sub-article

"(9) Notwithstanding the foregoing provisions of

this article, conduct also constitutes an extraditable offence

in relation to Malta if in relation to the said conduct a

decision on supervision measures in terms of the Decisions

on Supervision Measures (Execution in the European

Union) Regulations, 2013 was issued, even when the

conduct is not punishable with imprisonment or another

form of detention for a term of twelve months or a greater

punishment."; and

(b)

immediately after sub-article (7) of article 68

thereof, there shall be added the following new sub-article

"(8) Notwithstanding the foregoing provisions of

this article, conduct also constitutes an extraditable offence

in relation to Malta if in relation to the said conduct a

decision on supervision measures in terms of the Decisions

on Supervision Measures (Execution in the European

Union) Regulations, 2013 was issued, even when the

conduct is not punishable with imprisonment or another

form of detention for a term of twelve months or a greater

punishment.".

Schedule 1

(Regulation 7)

Scheduled offences

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,

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.

Schedule 2

(Regulation 5)

Certificate

referred to in Article 10 of Council Framework Decision 2009/829/JHA of 23

October 2009 on the application, between Member States of the European Union,

of the principle of mutual recognition to decisions on supervision measures as an

alternative to provisional detention ( 1 )

€1.62