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L.S. 9.19 Regolamenti dwar l-Eżekuzzjoni fl-Unjoni Ewropea ta’ Deċiżjonijiet dwar Miżuri ta’ Superviżjoni

DECISIONS ON SUPERVISION MEASURES (EXECUTION IN THE EUROPEAN UNION) [ S.L.9.19 SUBSIDIARY LEGISLATION 9.19 DECISIONS ON SUPERVISION MEASURES (EXECUTION IN THE EUROPEAN UNION) REGULATIONS 16th August, 2013 LEGAL NOTICE 249 of 2013. 1. The title of these regulations is the Decisions on Supervision Measures (Execution in the European Union) Regulations. 2. 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: (

  1. a)a scheduled offence; or (
  2. 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: (
  3. 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 Citation. Definitions. 1 2 DECISIONS ON SUPERVISION MEASURES (EXECUTION IN THE EUROPEAN UNION) [ S.L.9.19 (
  4. b)(
  5. c)(
  6. d)(
  7. e)(
  8. f)(
  9. g)(
  10. h)Cap.460. Limitation. Competent authorities. Mode of transmission. criminal proceedings; an obligation not to enter certain localities, places or defined areas in the issuing or executing State; an obligation to remain at a specified place, where applicable during specified times; an obligation containing limitations on leaving the territory of the executing State; an obligation to report at specified times to a specific authority; an obligation to avoid contact with specific persons in relation with the offence allegedly committed; 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; 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. 3. 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. 4. For the purposes of these regulations: (
  11. 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 (
  12. b)a court of criminal jurisdiction shall be competent to issue decisions on supervision measures. 5.

(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 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. DECISIONS ON SUPERVISION MEASURES (EXECUTION IN THE EUROPEAN UNION) [ S.L.9.19 6.
(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. Procedure for the forwarding of decision.
(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. 7.
(1)A decision on supervision measures shall contain a statement that the decision relates to: (
  1. a)conduct which (
  2. i)is a scheduled offence; and (
  3. 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 (
  4. b)conduct which (
  5. i)would constitute an offence under the law of Malta if it occurred in Malta; and (
  6. 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)(
  1. i)(
  2. 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; (
  3. 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; (
  4. 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 (
  1. a)to (
  2. 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 3 Details of decisions on supervision measures. 4 DECISIONS ON SUPERVISION MEASURES (EXECUTION IN THE EUROPEAN UNION) [ S.L.9.19 indicate: (
  1. 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 (
  2. 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. Certificate by Attorney General. 8. 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. Grounds for nonrecognition. 9.
(1)A decision on supervision measures shall not be recognised by the Attorney General if: (
  1. 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; (
  2. 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; (
  1. c)recognition of the decision on supervision measures would be contrary to the principle of ne bis in idem; (
  2. 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; (
  3. 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; (
  4. f)there is an immunity or privilege under the law of Malta which prevents the monitoring of the supervision measures; (
  5. 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; DECISIONS ON SUPERVISION MEASURES (EXECUTION IN THE EUROPEAN UNION) [ S.L.9.19 (
  6. 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. 5 S.L. 276.05
(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). 10. 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. Execution after issue of certificate. 11.
(1)The following provisions of this regulation shall apply where a decision is transmitted to a court of criminal jurisdiction under regulation 10. Effect of decision.
(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. Cap.9.
(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. 12.
(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. Adaptation of supervision measures.
(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. 13.
(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: (
  1. a)where the person concerned has established his lawful and ordinary residence in a State other than the executing State; Competence of issuing authority. 6 [ S.L.9.19 DECISIONS ON SUPERVISION MEASURES (EXECUTION IN THE EUROPEAN UNION) (
  2. b)where the issuing State has notified the executing State of the withdrawal of the certificate pursuant to Article 13
(3)of the Arrangement; (
  1. 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; (
  2. d)when the maximum period within which the supervision measures can be monitored in the executing State has expired; (
  3. e)where the executing authority has informed the issuing State that it has stopped monitoring the supervision measures. Information to issuing State. 14. The issuing authority shall be informed by any means which leaves a written record: (
  4. 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; (
  5. b)of any change of residence of the person to whom the supervision measures refer; (
  6. c)of the maximum length of time during which the supervision measures can be monitored under the laws of Malta; (
  7. 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; (
  8. e)of the fact that a legal remedy has been introduced against a decision to recognise a decision on supervision measures; (
  9. f)of the final decision to recognise the decision on supervision measures and take all necessary measures for the monitoring of the supervision measures; (
  10. g)of any decision to adapt the supervision measures in accordance with regulation 12; (
  11. 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; (
  12. 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. DECISIONS ON SUPERVISION MEASURES (EXECUTION IN THE EUROPEAN UNION) [ S.L.9.19 7
  1. 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. Continuation of the monitoring of supervision measures.
  2. 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. Termination. 17.
(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. Issue of decisions on supervision measures.
(2)Upon the issue of a decision on supervision measures by a court of criminal jurisdiction, the Attorney General shall append to the decision: (
  1. a)the certificate provided for in Schedule 2 purporting to reproduce details setting out the information required by the same certificate; (
  2. b)a statement indicating that the decision has been issued, apart from any of the measures referred to in paragraphs (
  3. a)to (
  4. 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: (
  1. 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 (
  2. 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. 18.
(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: (
  1. a)the renewal, review and withdrawal of the decision on Competence of issuing authority and discretion of executing authority. 8 [ S.L.9.19 DECISIONS ON SUPERVISION MEASURES (EXECUTION IN THE EUROPEAN UNION) supervision measures; (
  2. b)the modification of the supervision measures; (
  3. 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: (
  1. a)adapt these modified measures in accordance with regulation 12; or (
  2. 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) [ S.L.9.19 9 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. 10 [ S.L.9.19 DECISIONS ON SUPERVISION MEASURES (EXECUTION IN THE EUROPEAN UNION) 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)DECISIONS ON SUPERVISION MEASURES (EXECUTION IN THE EUROPEAN UNION) [ S.L.9.19 11 12 [ S.L.9.19 DECISIONS ON SUPERVISION MEASURES (EXECUTION IN THE EUROPEAN UNION) DECISIONS ON SUPERVISION MEASURES (EXECUTION IN THE EUROPEAN UNION) [ S.L.9.19 13 14 [ S.L.9.19 DECISIONS ON SUPERVISION MEASURES (EXECUTION IN THE EUROPEAN UNION) DECISIONS ON SUPERVISION MEASURES (EXECUTION IN THE EUROPEAN UNION) [ S.L.9.19 15

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