CUSTODIAL SENTENCES OR MEASURES INVOLVING DEPRIVATION OF LIBERTY ORDERS (EXECUTION IN THE EUROPEAN UNION)

IN THE EUROPEAN UNION)

SUBSIDIARY LEGISLATION 9.17

CUSTODIAL SENTENCES OR MEASURES

INVOLVING DEPRIVATION OF LIBERTY ORDERS

(EXECUTION IN THE EUROPEAN UNION)

REGULATIONS

3rd February, 2012

LEGAL NOTICE 55 of 2012.

(1) The title of these regulations is the Custodial Sentences or

Measures Involving Deprivation of Liberty Orders (Execution in the

European Union) Regulations.

(2) The purpose of these Regulations is to transpose the

provisions of Council Framework Decision 2008/909/JHA of 27

November 2008 on the application of the principle of mutual

recognition to judgments in criminal matters imposing custodial

sentences or measures involving deprivation of liberty for the

purpose of their enforcement in the European Union, hereinafter

referred to as the "Arrangement".

(Regulation 2)

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, 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.

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In these regulations, unless the context otherwise requires -

"the Arrangement" means the Council Framework Decision

2008/909/JHA of 27 November 2008 on the application of the

principle of mutual recognition to judgments in criminal matters

imposing custodial sentences or measures involving deprivation of

liberty for the purpose of their enforcement in the European Union,

as amended by Council Framework Decision 2009/299/JHA of 26

February 2009;

"certificate" means the certificate set out in Schedule II;

"Director" means the Director of Correctional Services and

includes any other public officer authorised on his behalf by such

Director;

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

in the Treaty;

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

is forwarded for the purpose of its recognition;

"issuing State" means the Member State in which a judgment is

delivered;

"judgment" means a final decision or order of a court of the

issuing State imposing a sentence on a natural person;

"the notification" means the notification set out in Schedule III;

"relevant offence" means

(a) a scheduled offence; or

(b) any other offence liable to the punishment of

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imprisonment or of detention for a term of more than

one year;

"scheduled offence" means any offence in the list of offences set

out in Schedule I;

"sentence" m eans any custodial sentence or any measure

involving deprivation of liberty imposed upon a conviction for a

relevant offence;

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

2 of the European Union Act.

(Regulation 5)

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These regulations shall be limited to the transmission of

judgments between Malta and a Member State of the European

Union and shall apply to judgments issued after the 5 th December,

2011, made in terms of the Arrangement.

(Regulation 8)

Notification of t he sentenced person

You are hereby notified of the decision of .................................................. (competent

authority of the issuing State) to forward the judgment of ..............................................

(competent court of the issuing State) dated ...................................... (date of judgment)

................................... (reference number; if available) to ..............................................

(executing State) for the purpose of its recognition and enforcement of the sentence

imposed therein in accordance with the national law implementing Council

Framework Decision 2008/909/JHA of 27 November 2008 on the application of the

principle of mutual recognition of judgments in criminal matters imposing custodial

sentences or measures involving deprivation of liberty for the purpose of their

enforcement in the European Union.

The enforcement of the sentence will be governed by the law of

...................................................... (executing State). The authorities of that State will be

competent to decide on the procedures for enforcement and to determine all the

measures relating thereto, including the grounds for early or conditional release.

The competent authority of ................................................................... (executing State)

has to deduct the full period of deprivation of liberty already served in connection

with the sentence from the total duration of deprivation of liberty to be served. An

adaptation of the sentence by the competent authority of ................................................

(executing State) may take place only if it is incompatible with the law of that

State in terms of its duration or nature. The adapted sentence must not aggravate

the sentence passed in ........................................................... (issuing State) by its nature

or duration.

For purposes of these regulations

(a) the Attorney General shall be competent to receive

judgments issued in the issuing State and to transmit to

the executing State judgments issued in Malta by the

courts of criminal jurisdiction;

(b) the courts of criminal jurisdiction shall be competent

to issue judgments.

(1) A judgment shall be transmitted with the certificate

provided for in Schedule II and containing 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 judgment to

be in either the Maltese or English language.

(3) The original of the judgment, or a certified copy thereof,

and the original of the certificate shall be transmitted to the

executing State if it so requires.

(1) The following provisions of this regulation shall apply

where the sentenced person is in the issuing State or in the

executing State, and provided the said person has given his consent

where required under regulation 8.

(2) The judgment, together with the certificate, shall be

transmitted to one of the following Member States

(a) the Member State of nationality of the sentenced

person in which the said person habitually resides; or

(b) the Member State of nationality, to which, while not

being the Member State where the said person

habitually resides, the sentenced person will be

deported, once he is released from the enforcement of

the sentence on the basis of an expulsion or

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deportation order included in the judgment or in a

judicial or administrative decision or any other

measure taken consequential to the judgment; or

(c)

any Member State other than a Member State referred

to in paragraphs (a) or (b), the competent authority of

which consents to the forwarding of the judgment and

the certificate to that Member State.

(1) A judgment shall contain a statement that the judgment

relates to

(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 Sate

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;

(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.

(1) Saving the provisions of sub-regulation (2), a judgment

together with the certificate shall only be transmitted to the

executing State with the consent of the sentenced person.

(2) The consent of the sentenced person shall not be required

where the judgment together with the certificate is forwarded

(a) to the Member State of nationality in which the

sentenced person habitually resides; or

(b) to the Member State to which the sentenced person

will be deported once he or she is released from the

enforcement of the sentence on the basis of an

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expulsion or deportation order included in the

judgment or in a judicial or administrative decision or

any other measure consequential to the judgment; or

(c) to the Member State to which the sentenced person has

fled or otherwise returned in view of the criminal

proceedings pending against him in the issuing State or

following the conviction in that issuing State.

(3)

(a) Where the sentenced person is still in the issuing State,

the said person shall be given an opportunity to state

his opinion orally or in writing. Where the issuing

State considers it necessary in view of the sentenced

person’s age or his physical or mental condition, that

opportunity shall be given to the person vested with

legal representation of the sentenced person.

(b) The opinion of the sentenced person shall be taken into

account by the issuing State when deciding the issue of

forwarding the judgment together with the certificate.

Where the person has availed himself of the

opportunity provided for in this sub-regulation, that

opinion shall be forwarded to the executing State. If

the sentenced person stated his opinion orally, the

issuing State shall ensure that the written record of

such statement is available to executing State.

(4) The competent authority of the issuing State shall inform

the sentenced person, in a language which he understands, that it

has decided to forward the judgment together with the certificate by

using the standard form of the notification set out in Schedule III.

When the sentenced person is in the executing State at the time of

that decision, that form shall be transmitted to the executing State

which shall inform the sentenced person accordingly.

(1) As long as the enforcement of the sentence has not

begun in the executing State, the issuing State may withdraw the

certificate from that State, giving reasons for doing so.

(2) Upon withdrawal of the certificate, the executing State shall

no longer be required to enforce the sentence.

(1) Where the Attorney General receives a judgment

within the meaning of these regulations, the Attorney General shall,

in his own individual judgment and subject to the provisions of

regulations 11 and 12, issue a certificate to the effect that the

authority which issued the judgment has the function of issuing

judgments in the issuing State and such certificate shall be

conclusive of its contents.

(2) The certificate issued under sub-regulation (1), together

with the judgment to which it refers, shall be communicated to the

Director for enforcement.

(1) Subject to the provisions of regulation 12, a judgment

shall not be recognized by the Attorney General if

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(a) the certificate provided for in Schedule II is not

produced, is incomplete or manifestly does not

correspond to the judgment and has not been

completed or corrected within a reasonable deadline

set by the competent authority of the executing State;

(b) the provisions of regulation 6 are not satisfied;

(c) enforcement of the sentence would be contrary to the

principle of ne bis in idem;

(d) the act on which the judgment 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 enforcement of the judgment is barred by

prescription according to the law of Malta;

(f)

there is an immunity or privilege under the law of

Malta which makes it impossible to enforce the

judgment;

(g) the sentence has been imposed on a person who, under

the law of Malta, owing to his age, could not have

been held criminally liable for the acts in respect of

which the judgment was issued;

(h) at the time the judgment was received less than six

months of the sentence remain to be served;

(i)

according to the certificate provided for in Schedule II,

the person 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

(i) in due time was summoned in person and

thereby informed of the scheduled date and

place of the trial which resulted in the judgment,

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

(ii) 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

(iii) after being served with the decision and being

expressly informed of the right to a retrial, or an

appeal, in which the person 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

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he does not contest the decision, or he did not

request a retrial or an appeal within the

applicable time-frame;

(j)

before a decision is taken on the recognition of the

judgment a request is made to the issuing State in

terms of Article 18(3) of the Arrangement, and the

issuing State does not consent, in accordance with

Article 18(2)(g) of the Arrangement, to the person

concerned being prosecuted, sentenced or otherwise

deprived of his liberty in the executing State for an

offence committed prior to the transfer other than that

for which the person was transferred;

(k) the sentence imposed includes a measure of

psychiatric or health care or another measure

involving

deprivation

of

liberty,

which,

notwithstanding the provisions of regulation 14(3)

cannot be executed in Malta in accordance with its

legal or health care system;

(l)

the judgment relates to criminal offences which

(i) under the law of Malta, are regarded as having

been committed wholly or partly within its

territory, or

(ii) were committed outside the territory of the

issuing State, and the law of Malta does not

permit legal proceedings to be taken in respect

of such offences where they are committed

outside the Maltese territory.

(2) Before a decision is taken by the Attorney General to refuse

recognition of the judgment in cases referred to in sub-regulation

(1)(a), (b), (c), (i), (k) and (l), the competent authority of the

executing State shall be consulted and shall, where appropriate, be

requested to supply any necessary additional information without

delay

Provided that any decision under sub-regulation (1)(l) shall

be taken by the Attorney General in exceptional circumstances and

on a case-by-case basis, having regard to the specific circumstances

of the case, and in particular to whether a major or essential part of

the conduct in question has taken place in the issuing State.

(3) The competent authority of the issuing State may also be

consulted by the Attorney General in cases where it is deemed

possible to give partial recognition to the judgment and

enforcement of the sentence with a view to finding an agreement as

provided for under this sub-regulation

Provided that if agreement is reached to give partial

recognition and enforcement of the sentence in accordance to

conditions set out by them, such recognition and enforcement does

not result in the aggravation of the duration of the sentence, and in

the absence of such agreement, the certificate shall be withdrawn.

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The Attorney General may postpone recognition of the

judgment where the certificate referred to is incomplete or

manifestly does not correspond to the judgment, until such

reasonable deadline set by him for the certificate to be completed

or corrected.

(1) The Attorney General shall, as soon as practicable,

decide whether to recognise the judgment, and shall inform the

issuing State thereof and of any decision to adapt the sentence in

accordance with these regulations.

(2) A decision on the recognition of the judgment and the

enforcement of the sentence shall be taken within a period of ninety

days of receipt of the judgment and the certificate, unless there

exists any ground for postponement in terms of the Arrangement.

When in exceptional cases it is not practicable for a decision to be

taken within this period, the Attorney General shall inform the

issuing State giving the reasons for the delay and the estimated

time needed for the final decision to be taken.

(1) Where the sentence is incompatible, in terms of its

duration, with the law of Malta, the sentence may only be adapted

where that sentence exceeds the maximum penalty provided for

similar offences under the law of Malta.

(2) The adapted sentence shall not be less than the maximum

pe nal t y p ro v id ed f o r si m i la r o ff en ce s u n de r t he l aw o f t h e

executing State.

(3) Where the sentence is incompatible, in terms of its nature,

with the law of Malta the sentence may be adapted to the

punishment or measure provided for under its own law for similar

offences

Provided that such a punishment or measure shall

correspond as closely as possible to the sentence imposed in the

issuing State and that the sentence shall not be converted into a

pecuniary punishment.

(1) The enforcement of a sentence shall be governed by

the law of Malta.

(2) Any period spent in custody and already served in

connection with the sentence in respect of which the judgment was

issued shall be deducted from any sentence to be served in Malta.

(3) The Attorney General shall, upon request, inform the

c o m p e t e n t a u t h o r i t y o f t h e i s s u i n g St a t e o f t h e a p p l i c a b l e

provisions on remission and possible early or conditional release.

The issuing State may agree to the application of such provisions or

it may withdraw the certificate.

(4) Where the Attorney General is informed by the competent

authority of the executing State of any decision or measure as a

result of which the sentence ceases to be enforceable, immediately

or within a certain period of time, the enforcement of that sentence

shall be immediately terminated.

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(1) Where a sentenced person is in Malta, before the

arrival of the judgment and the certificate, or before the decision to

recognise the judgment and enforce the sentence, the issuing

authority may request for the provisional arrest of the sentenced

person or that other measures be taken to ensure that the sentenced

person remains in Malta pending a decision to recognise the

judgment and enforce the sentence.

(2) The duration of the sentence shall not be aggravated as a

result of any period spent in custody by reason of this provision.

(1) A person transferred to Malta under the Arrangement

shall not, subject to sub-regulation (2), be prosecuted, sentenced or

otherwise deprived of his liberty for an offence committed before

his transfer other than that for which he was transferred.

(2)

Sub-regulation (1) shall not apply in the following cases

(a) when the person having had an opportunity to leave

Malta has not done so within forty-five days of his

final discharge, or has returned to Malta after leaving

it;

(b) when the offence is not punishable by a custodial

sentence or detention order;

(c) when the criminal proceedings do not give rise to the

application of a measure restricting personal liberty;

(d) when the sentenced person could be liable to a penalty

or a measure not involving deprivation of liberty, in

particular a financial penalty or a measure in lieu

thereof, even if the penalty or measure in lieu may

give rise to a restriction of his personal liberty;

(e) when the sentenced person consented to the transfer;

(f)

when the sentenced person, after his transfer, has

expressly renounced entitlement to the speciality rule

with regard to specific offences preceding his transfer

Provided that in such case renunciation shall be given

before the Court in the presence of legal counsel and a

record be made of the said renunciation. The

renunciation shall be drawn up in such a way as to

make clear that the person has given it voluntarily and

in full awareness of the consequences;

(g) for cases other than those mentioned under paragraphs

(a) to (f) where the issuing State gives its consent in

accordance to Article 18(3) of the Arrangement.

(1) An amnesty or pardon may be granted by the issuing

State and also by the executing State.

(2) Only the issuing State may decide on applications for

review of the judgment imposing the sentence to be enforced under

the Arrangement.

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The Attorney General shall immediately inform the issuing

State by any means capable of producing a written record

(a) of the fact that it is not possible to enforce the sentence

since the sentenced person cannot be found in Malta;

(b) of the final decision to recognise the judgment and

enforce the sentence together with the date of the

decision;

(c) of any decision not to recognise the judgment and

enforce the sentence in accordance with regulation 11

together with the reasons for the decision;

(d) of any decision to adapt the sentence in accordance

with regulation 14, together with the reasons for the

decision;

(e) of any decision not to enforce the sentence for the

reasons referred to in regulation 18(1) together with

the reasons for the decision;

(f)

of the beginning and the end of the period of

conditional release, where so indicated in the

certificate by the issuing State;

(g) of the sentenced person’s escape from custody;

(h) of the enforcement of the sentence as soon as it has

been completed.

(1) Where a judgment has been delivered by a court of

criminal jurisdiction, which judgment has become res judicata, the

provisions of this regulation shall apply.

(2) Where the Director is satisfied that the enforcement of the

sentence by the executing State would serve the purpose of

facilitating the social rehabilitation of the sentenced person, a

judgment shall be issued in terms of these regulations.

(3) Upon the issue of a judgment, the Attorney General shall

append to the judgment the certificate provided for in Schedule II

purporting to reproduce details setting out the information required

by the same certificate.

(4) The Attorney General shall sign and certify as authentic the

contents of the certificate.

The Attorney General shall forthwith inform the competent

authority of the executing State of any decision or measure as a

result of which the sentence ceases to be enforceable immediately

or within a certain period of time.

(1) Subject to sub-regulation (2), the Maltese authorities

shall not proceed with the enforcement of a sentence once its

enforcement has commenced in the executing State.

(2) The right to enforce a sentence shall revert to the Maltese

authorities upon information by the executing State of the partial

non-enforcement of the sentence pursuant to the sentenced person’s

escape from custody.

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(1) If the sentenced person is in Malta, he shall be

transferred to the executing State at a time agreed with the

executing State which shall be within thirty days, which period

shall commence to run on the date when the final decision, of the

executing State on the recognition of the judgment and enforcement

of the sentence, has been taken.

(2) If the transfer of the sentenced person within the period laid

down in sub-regulation (1) is prevented by unforeseen

circumstances, the competent authorities of the executing State

shall be informed.

(3) Transfer shall take place as soon as circumstances

preventing the transfer from taking place cease to exist.

(4) The Director shall immediately inform the competent

authority of the executing State and agree on a new transfer date

and in such case, transfer shall take place within ten days of that

date.

(1) The Commissioner of Police may authorize transit

through Malta of a sentenced person who is being transferred to the

executing State, provided that a copy of the certificate has been

forwarded to it by the issuing State together with the transit

request.

(2) The information referred to in sub-regulation (1) may be

transmitted to the Commissioner of Police by any means capable of

producing a written record.

(3) When receiving a request to permit transit, the

Commissioner of Police shall inform the issuing State if it cannot

guarantee that the sentenced person will not be prosecuted, or

detained or otherwise subjected to any restriction of his liberty, in

Malta, for any offence committed or sentence imposed before his

departure from the territory of the issuing State. In such a case, the

issuing State may withdraw its request.

(4) The Commissioner of Police shall notify the issuing State

of his decision taken on the request, which decision shall be taken

on a priority basis and not later than one week after having received

the request, by the same procedure.

(5) When the transport of the sentenced person is to take place

by air, it will only be necessary to provide the Commissioner of

Police with the information required in sub-regulation (1) in the

event that an unscheduled landing occurs.

(6) A person being conveyed through Malta in the course of his

transfer to the issuing State shall be kept in custody during the

period of transit.

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