DECISIONS ON SUPERVISION MEASURES (EXECUTION IN THE EUROPEAN UNION) REGULATIONS

DECISIONS ON SUPERVISION MEASURES

(EXECUTION IN THE EUROPEAN UNION)

SUBSIDIARY LEGISLATION 9.19

DECISIONS ON SUPERVISION MEASURES

(EXECUTION IN THE EUROPEAN UNION)

REGULATIONS

16th August, 2013

LEGAL NOTICE 249 of 2013.

The title of these regulations is the Decisions on

Supervision Measures (Execution in the European Union)

Regulations.

In these regulations, unless the context otherwise requires -

"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

in Schedule 1;

"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

DECISIONS ON SUPERVISION MEASURES

(EXECUTION IN THE EUROPEAN UNION)

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

transmitted with the certificate provided for in Schedule 2

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

Provided that it shall not be necessary for the decision on

supervision measures to be in either the Maltese or English

(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.

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(1) A decision on supervision measures may be forwarded

to the Member State in which the person to whom the 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

statement that the decision 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 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

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(EXECUTION IN THE EUROPEAN UNION)

(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

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;

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(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;

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(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

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.

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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

laws, have the competence to take all subsequent decisions relating

to a decision on supervision measures, including

(a) the renewal, review and withdrawal of the decision on

DECISIONS ON SUPERVISION MEASURES

(EXECUTION IN THE EUROPEAN UNION)

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.

DECISIONS ON SUPERVISION MEASURES

(EXECUTION IN THE EUROPEAN UNION)

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.

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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 )

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