European Protection Order (Execution) Regulations, 2014

L.N. 294 of 2014

CRIMINAL CODE

(CAP. 9)

European Protection Order (Execution) Regulations, 2014

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

Criminal Code, the Minister for Justice has made the following

regulations:-

The title of these regulations is the European Protection

Order (Execution) Regulations, 2014.

In these regulations, unless the context otherwise requires -

"the Arrangement" means the Directive 2011/99/EU of the

European Parliament and of the Council of 13 December 2011 on the

European protection order;

"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 1;

"court" means a court of criminal jurisdiction;

"European protection order" means a decision, taken by a

judicial or equivalent authority of a Member State in relation to a

protection measure, on the basis of which a judicial or equivalent

authority of another Member State takes any appropriate measure or

measures under its own national law with a view to continuing the

protection of the protected person;

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

in the Treaty;

"executing State" means the Member State to which a European

protection order has been forwarded with a view to its recognition;

"issuing State" means the Member State in which a protection

measure has been adopted that constitutes the basis for issuing a

European protection order;

"person causing danger" means the natural person on whom one

or more of the prohibitions or restrictions referred to in regulation 6

have been imposed;

"protected person" means a natural person who is the object of

the protection resulting from a protection measure adopted by the

issuing State;

"protection measure" means a decision in criminal matters

adopted in the issuing State in accordance with its national law and

procedures by which one or more of the prohibitions or restrictions

referred to in regulation 6 are imposed on a person causing danger in

order to protect a protected person against a criminal act which may

endanger his life, physical or psychological integrity, dignity,

personal liberty or sexual integrity;

"State of supervision" means the Member State to which a

judgment within the meaning of Article 2 of Framework Decision

2008/947/JHA, to which reference is made in the Probation Act, or a Cap. 446.

decision on supervision measures within the meaning of Article 4 of

Framework Decision 2009/829/JHA to which reference is made in the

Decisions on Supervision Measures (Execution in the European S.L. 9.19

Union) Regulations, has been transferred;

"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 Limitation.

execution of European Protection orders between Malta and a

Member State of the European Union, which has implemented the

Arrangement, and shall apply to European protection orders received

in Malta after the 11 th January 2015.

For the purposes of these regulations

Competent

authorities.

(a)

the Attorney General shall be competent to receive

a European protection order issued in the issuing State and to

transmit to the executing State European protection orders

issued in Malta by a court of criminal jurisdiction; and

(b)

a court of criminal jurisdiction shall be competent

to issue a European protection order.

(1)

A European protection order shall be transmitted Mode of

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

information prescribed therein, by any means capable of producing a

written record under conditions allowing the executing State to

establish authenticity.

(2) The European protection order and the certificate shall be

in either the Maltese or English language.

A European protection order may only be issued when a Protection

protection measure has been previously adopted in the issuing State, measure

national law.

imposing on the person causing danger one or more of the following

prohibitions or restrictions

(a)

a prohibition from entering certain localities,

places or defined areas where the protected person resides or

visits;

(b)

a prohibition or regulation of contact, in any form,

with the protected person, including by phone, electronic or

ordinary mail, fax or any other means; or

(c)

a prohibition or regulation on approaching the

protected person closer than a prescribed distance.

A European protection order shall be issued in accordance

with the certificate set out in Schedule 1 and shall, in particular,

contain the following information

(a)

the identity and nationality of the protected person,

as well as the identity and nationality of the guardian or

representative if the protected person is a minor or is legally

incapacitated;

(b)

the date from which the protected person intends to

reside or stay in the executing State, and the period or periods of

stay, if known;

(c)

the name, address, telephone and fax numbers and

e-mail address of the authority of the issuing State;

(d)

identification (for example, through a number and

date) of the legal act containing the protection measure on the

basis of which the European protection order is issued;

(e)

a summary of the facts and circumstances which

have led to the adoption of the protection measure in the issuing

State;

(f)

the prohibitions or restrictions imposed, in the

protection measure underlying the European protection order,

on the person causing danger, their duration and the indication

of the penalty, if any, in the event of the breach of any of the

prohibitions or restrictions;

(g)

the use of a technical device, if any, that has been

provided to the protected person or to the person causing danger

as a means of enforcing the protection measure;

(h)

the identity and nationality of the person causing

danger, as well as that person’s contact details;

(i)

where such information is known by the competent

authority of the issuing State without requiring further inquiry,

whether the protected person and/or the person causing danger

has been granted free legal aid in the issuing State;

(j)

a description, where appropriate, of other

circumstances that could have an influence on the assessment of

the danger that confronts the protected person;

(k)

an express indication, where applicable, that a

judgment within the meaning of Article 2 of Framework

Decision 2008/947/JHA, or a decision on supervision measures

within the meaning of Article 4 of Framework Decision 2009/

829/JHA, has already been transferred to the State of

supervision, when this is different from the State of execution of

the European protection order, and the identification of the

competent authority of that State for the enforcement of such a

judgment or decision.

Where the Attorney General receives a European Certificate by

protection order within the meaning of these regulations, the Attorney Attorney

General.

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 European protection order has the function

of issuing European protection orders and such certificate shall be

conclusive of its contents.

(1)

A European protection order shall

not be Grounds for

non-recognition.

recognised by a court of criminal jurisdiction if

(a)

the European protection order is not complete or

has not been completed within the time limit set by the court;

(b)

the requirements set out in regulation 6 have not

been met;

(c)

the protection measure relates to an act that does

not constitute an offence;

(d)

the protection derives from the execution of a

penalty or measure that, according to the laws of Malta, is

covered by an amnesty and relates to an act or conduct which

falls within the jurisdiction of the Maltese courts;

(e)

under the laws of Malta there is immunity

conferred on the person causing danger, which makes it

impossible to adopt measures on the basis of a European

protection order;

(f)

criminal prosecution, against the person causing

danger, for the act or the conduct in relation to which the

protection measure has been adopted is barred by prescription

according to the law of Malta and relates to an act or conduct

which falls within the jurisdiction of the Maltese courts;

(g)

recognition of the European protection order would

contravene the ne bis in idem principle;

(h)

under the laws of Malta the person causing danger

cannot, because of that person’s age, be held criminally

responsible for the act or the conduct in relation to which the

protection measure has been adopted;

(i)

the protection measure relates to a criminal offence

which, under the laws of Malta, is regarded as having been

committed, wholly or for a major or essential part, within its

territory.

(2) Where a court refuses to recognise a European protection

order in the application of one of the grounds referred to in

subregulation (1), the court shall

(a)

without undue delay, inform the issuing State and

the protected person of this refusal and of the grounds relating

thereto;

(b)

where appropriate, inform the protected person

about the possibility of requesting the adoption of a protection

measure in accordance with its national law;

(c)

inform the protected person of any applicable legal

remedies that are available under its national law against such a

decision.

Where a certificate has been issued by the Attorney

General under regulation 9, and without the need of any further

authority other than the authority conferred by this regulation, the

European protection order shall be transmitted to a court of criminal

jurisdiction for execution.

(1)

The following provisions of this regulation shall

apply where a protection order is transmitted to a court of criminal

jurisdiction under regulation 10.

(2) The provisions of article 412C of the Criminal Code shall Cap. 9.

mutatis mutandis apply to a European protection order executed

under this regulation as if it were an order made under the said article

412C. (3) A court of criminal jurisdiction shall, without delay,

recognise a European protection order and take a decision adopting

any measure that would be available under the laws of Malta in a

similar case in order to ensure the protection of the protected person

unless it decided to invoke one of the grounds for non-recognition

referred to in regulation 9.

(4) The measure adopted by the court in accordance with

subregulation (3), as well as any other measure taken on the basis of a

subsequent decision as referred to in regulation 12, shall, to the

highest degree possible, correspond to the protection measure

adopted in the issuing State.

(5) The court shall inform the person causing danger, the

competent authority of the issuing State and the protected person of

any measures adopted in accordance with subregulation (3), as well

as of the possible legal consequence of a breach of such measure

provided for under national law and in accordance with regulation

12(2). The address or other contact details of the protected person

shall not be disclosed to the person causing danger unless such details

are necessary in view of the enforcement of the measure adopted in

accordance with subregulation (3).

(6) If the court considers that the information transmitted with

the European protection order in accordance with regulation 7 is

incomplete, it shall without delay inform the competent authority of

the issuing State by any means which leaves a written record,

assigning a reasonable period for it to provide the missing

information.

(7) A European protection order shall be recognised with the

same priority which would be applicable in a similar national case,

taking into consideration any specific circumstances of the case,

including the urgency of the matter, the date foreseen for the arrival

of the protected person in Malta and, where possible, the degree of

risk for the protected person.

(1)

A court of criminal jurisdiction shall be competent Governing law

to adopt and to enforce measures following the recognition of a and

in the executing

European protection order. The laws of Malta shall apply to the State.

adoption and enforcement of the decision provided for in regulation

11(3), including rules on legal remedies against decisions adopted

relating to the European protection order.

(2) In the event of a breach of one or more of the measures

taken by a court of criminal jurisdiction following the recognition of a

European protection order, the court shall, in accordance with sub-

regulation (1), be competent to

(a)

impose criminal penalties and take any other

measure as a consequence of the breach, if that breach amounts

to a criminal offence under the laws of Malta;

(b)

take any non-criminal decisions related to the

breach;

(c)

take any urgent and provisional measure in order to

put an end to the breach, pending, where appropriate, a

subsequent decision by the issuing State.

(3) Where there is no available measure at national level in a

similar case that could be taken according to the laws of Malta, the

court shall report to the competent authority of the issuing State any

breach of the protection measure described in the European protection

order of which it is aware.

(4) Where the competent authority in the issuing State has

revoked or withdrawn the European protection order in accordance to

the Arrangement, the court shall discontinue the measures adopted in

accordance with this regulation as soon as it has been duly notified by

the competent authority of the issuing State.

(5) Where the competent authority in the issuing State has

modified the European protection order in accordance to the

Arrangement, the court shall, as appropriate

(a)

modify the measures adopted on the basis of the

European protection order, acting in accordance with this

regulation; or

(b)

refuse to enforce the modified prohibition or

restriction when it does not fall within the types of prohibitions

or restrictions referred to in regulation 6, or if the information

transmitted with the European protection order in accordance

with regulation 7 is, or has not been, completed within the time

limit set by the competent authority of the executing State in

accordance with regulation 11(6).

(1)

A court of criminal jurisdiction or the Attorney Notification in

General, as the case may be, shall notify the competent authority of the

breach.

the issuing State or of the State of supervision of any breach of the

measure or measures taken on the basis of the European protection

order.

(2) The notice referred to in subregulation (1) shall be given

using the standard form set out in Schedule 2.

(1)

A court of criminal jurisdiction may discontinue Grounds for

discontinuation

the measures taken in execution of a European protection order

of measures.

(a)

where there is clear indication that the protected

person does not reside or stay in Malta, or has definitively left

Malta;

(b)

where, according to the laws of Malta, the

maximum term of duration of the measures adopted in

execution of the European protection order has expired;

(c)

in the case referred to in regulation 16(7)(b); or

(d)

where a judgment within the meaning of Article 2

of Framework Decision 2008/947/JHA, or a decision on

supervision measures within the meaning of Article 4 of

Framework Decision 2009/829/JHA, is transferred to Malta

after the recognition of the European protection order.

(2) Where a decision to discontinue the measures has been

taken, the court shall immediately inform the competent authority of

the issuing State and, where possible, the protected person of such

decision.

(3) Before discontinuing measures in accordance with

subregulation 1(b) the court may invite the competent authority of the

issuing State to provide information as to whether the protection

provided for by the European protection order is still needed in the

circumstances of the case in question.

(1)

A European protection order may be issued when Procedure for

the protected person decides to reside or already resides in another the

European

Member State, or when the protected person decides to stay or protection order.

already stays in another Member State. When deciding upon the

issuing of a European protection order, a court of criminal jurisdiction

shall take into account, inter alia, the length of the period or periods

that the protected person intends to stay in the executing State and the

seriousness of the need for protection.

(2) A court of criminal jurisdiction may issue a European

protection order only at the request of the protected person and after

verifying that the protection measure meets the requirements set out

in regulation 6.

(3) The protected person may, by means of an application,

request a court of criminal jurisdiction to issue a European protection

order

Provided that where Malta is the executing state, a copy of

the request shall, as soon as possible, be transmitted to the competent

authority of the issuing state.

(4) Before issuing a European protection order, the person

causing danger shall be given the right to be heard and the right to

challenge the protection measure, if that person has not been granted

these rights in the procedure leading to the adoption of the protection

measure.

(5) When a court of criminal jurisdiction adopts a protection

measure containing one or more of the prohibitions or restrictions

referred to in regulation 6, the protected person shall be informed

about the possibility of requesting a European protection order in the

case that the said person decides to leave for another Member State,

as well as of the basic conditions for such a request. The court shall

advise the protected person to submit an application before leaving

Malta.

(6) If the protected person has a guardian or representative,

that guardian or representative may introduce the request referred to

in sub-regulations (2) and (3), on behalf of the protected person.

(7) If the request to issue a European protection order is

rejected, the court shall inform the protected person of any applicable

legal remedies that may be available, against such a decision.

(1)

A court of criminal jurisdiction shall have

exclusive competence to take decisions relating to

(a)

the renewal, review, modification, revocation and

withdrawal of the protection measure and, consequently, of the

European protection order;

(b)

the imposition of a custodial measure as a

consequence of revocation of the protection measure, provided

that the protection measure has been applied on the basis of a

judgment within the meaning of Article 2 of Framework

Decision 2008/947/JHA, or on the basis of a decision on

supervision measures within the meaning of Article 4 of

Framework Decision 2009/829/JHA.

(2) The laws of Malta shall apply to decisions adopted in

accordance with sub-regulation (1).

(3) Where a judgment within the meaning of Article 2 of

Framework Decision 2008/947/JHA, or a decision on supervision

measures within the meaning of Article 4 of Framework Decision

2009/829/JHA, has already been transferred, or is transferred after the

issuing of the European protection order, to another Member State,

subsequent decisions, as provided for by those Framework Decisions,

shall be taken in accordance with the relevant provisions of those

Framework Decisions.

(4) When the protection measure is contained in a judgment

within the meaning of Article 2 of Framework Decision 2008/947/

JHA which has been transferred or is transferred after the issuing of

the European protection order to another Member State, and the

competent authority of the State of supervision has made subsequent

decisions affecting the obligations or instructions contained in the

protection measure in accordance with Article 14 of that Framework

Decision, the court shall renew, review, modify, revoke or withdraw

without delay the European protection order accordingly.

(5) The court shall inform the competent authority of the

executing State without delay of any decision taken in accordance

with subregulation (1) or (4).

(6) Where the court has revoked or withdrawn the European

protection order in accordance with sub-regulation (1)(a) or with

subregulation (4), it shall duly notify the executing State and upon

such notification, the executing state shall discontinue the measures

adopted in accordance with Article 9(1) of the Arrangement.

(7) Where the court modifies the European protection order in

accordance with sub-regulation (1)(a) or with sub-regulation (4), the

competent authority in the executing State shall, as appropriate

(a)

modify the measures adopted on the basis of the

European protection order, acting in accordance with Article 9

of the Arrangement; or

(b)

refuse to enforce the modified prohibition or

restriction when it does not fall within the types of prohibitions

or restrictions referred to in regulation 6, or if the information

transmitted with the European Protection order in accordance

with regulation 7 is incomplete or has not been completed

within the time limit set by the competent authority of the

executing State in accordance with regulation 11(6).

(1)

Upon the issue of a European protection order

under regulation 15, the Attorney General shall append the certificate

provided in Schedule 1 purporting to reproduce details setting out the

information required by the same certificate.

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

the contents of the certificate.

€1.53