Popowo, 7 June 2007

[ccpe-bu/docs2007/ccpe-bu(2007) 15 rev]

      CCPE-Bu (2007) 15 rev

BUREAU OF THE

CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS

(CCPE-Bu)

ALTERNATIVES TO PROSECUTION

IN COUNCIL OF EUROPE MEMBER STATES

QUESTIONNAIRE

adopted by the Bureau of the CCPE

at its 3^rd meeting

(Popowo, Poland, 6-8 June 2007)

Questionnaire on alternatives to prosecution in Council of Europe member States

I.          INTRODUCTION

Under the framework overall action plan for the work of the CCPE as approved by the Committee of Ministers at the 981st meeting of the Ministers’ Deputies on 29 November 2006 and by the CCPE at its first meeting in Moscow on 6 July 2006, the Bureau of the CCPE decided, in the light of the Conference of Prosecutors General of Europe (CPGE) held in Celle from 23 to 25 June 2004 on the theme "Discretionary powers of public prosecution: opportunity or legality principle - advantages and disadvantages", to carry out a study on the adoption of alternatives to prosecution with a view to identifying the best practices followed in the Council of Europe member States and promoting them.

To that end, it is submitting the enclosed questionnaire to all the national members of the CCPE, asking them to reply in English or French by 15 September 2007, in order to fuel discussion to be held on this topic at the next plenary meeting of the CCPE, at which it will be proposed to adopt an opinion.

The Bureau of the CCPE would be grateful if you would kindly e-mail your replies to the following questions to its Secretariat at the following address: [email protected], so that they may be used to prepare the plenary meeting of the CCPE, when this question will be on the agenda.

It should be noted that the replies to this questionnaire will not in any circumstances be published in a manner suggesting that they represent the official position or situation of the States on the question considered; their sole purpose is to gather the fullest possible sample of good practices with a view to drafting a document making recommendations on this question for the European Committee on Crime Problems (CDPC), and it is the task of the members of the CCPE to gather the relevant information from the individuals and practitioners with the closest knowledge of this issue in their country.  This is in no way an evaluation.

II.         CONCLUSIONS OF THE CPGE IN CELLE

The Prosecutors General meeting in Celle from 23 to 25 June 2004 noted with satisfaction that there was a trend towards European harmonisation of the objectives of the different legal systems, revolving around the principles of public interest, the equality of all before the law and personalisation of criminal justice, in accordance with Council of Europe recommendation Rec(2000)19.

The Conference of Prosecutors General called for implementation of the principles of:

1-         the possibility of choosing between the criminal law response and other responses to offences, regardless of the system of definition of punishment by law or discretionary prosecution, given the need to punish serious offences in the public interest, particularly corruption or offences by public office-holders;

2-         serious, credible alternatives which are designed to prevent the perpetrator from reoffending and take the victims' interests into account;

3-         respect, when applying an alternative sanction, of law provisions enshrining inter alia the right of victims and the objective, fair and impartial treatment of the perpetrator.

III.         DEFINITIONS

For the purposes of the present questionnaire an alternative to prosecution shall be taken to mean the temporary or conditional abandon of prosecution in a case where an infringement of the law has been committed, exposing its perpetrator to a criminal sanction such as imprisonment or a fine with or without a suspended sentence, as well as ancillary penalties such as confiscation, the deprivation of certain rights etc. It is to be noted that pleads guilty before the courts are not covered by this questionnaire, in that they do not preclude criminal law measures.

IV. QUESTIONNAIRE

1.         Concerning the legal framework: does your country follow a system of mandatory or discretionary prosecution? Has the situation changed during the last two years or is a change envisaged? In your country, what is the percentage of criminal law responses to offences perpetrated by identified offenders in the years 2005 and 2006? Amongst those, what is the proportion of alternative to prosecution responses?

Malta follows a system of mandatory prosecution.  Under article 4(2) of Chapter 9 of the Criminal Code “A criminal action is prosecuted ex officio in all cases where the complaint of the private party is not requisite to set the action in motion or where the law does not expressly leave the prosecution of the action to a private party”. 

With regard to offences relating to 1) contraventions in the Criminal Code, 2) all crimes referred to in the Criminal Code which are liable to the punishments established for contraventions, 3) to a fine (multa), 4) to imprisonment for a term not exceeding six months with or without the addition of a fine (multa) or 5) interdiction, or all offences referred to in any other law which are liable to the punishments established, the prosecution shall lie with the injured party where proceedings cannot be instituted except on the complaint of the injured party. However under article 373 of Chapter 9 of the Criminal Code an exception lies in that “if the offence is aggravated by public violence, or is accompanied with any other offence affecting public order, or if, in the absence of any such circumstances, the injured party shall fail to institute proceedings and shall not have expressly waived the right to prosecute within four days from the commission of the offence it shall be lawful for the Executive Police ex officio to institute proceedings in respect of the offence.”

The police have the obligation to investigate all cases under Chapter 9 of the Criminal Code[1].  A case is not closed unless it is prescribed or else there is a verdict of guilt established by the competent court.  In the latter case, however, if there is sufficient reason to believe that there are other alleged perpetrators, the police shall keep the case open until all other perpetrators are identified and brought to justice, even though the main perpetrator of the offence has been found guilty or discharged.

The situation has not changed extensively during the last two years.  By means of Act No. XVI of 2006 to amend the Criminal Code, Cap 9, in terms of crime of being in possession of drugs with intent for personal consumption, the perpetrator can be given a warning instead of detention[2]. More recently by means of Act No. III of 2007 to amend the Code of Police Laws, Cap. 10, in terms of contraventions, where a minor under 16 years is consuming alcohol the minor can be given a reprimand[3]. 

The percentage of criminal law responses to offences perpetrated by identified offenders in the years 2005 and 2006 is 100%.  Of those the proportion of alternatives to prosecution responses is nil[4].

2.         In the event of an offence, are your judicial authorities able to choose between criminal law measures and other responses? If so, please specify which. Is that choice definitive or can it be challenged?

The judicial authorities in Malta are the courts of justice and the Attorney General[5].  Maltese criminal law provides for punitive measures.  Nevertheless under special legislation administrative sanctions maybe levied, upon settling of which by the offender no criminal proceedings are instituted.  Other measures such as Treatment Order do exist in conjunction with the imposition of criminal measures.  Compensation to victims for restitution of damages may also be sought by a victim.  Maltese judicial authorities apply the legislative framework as applicable.  In general it is the criminal law that is applicable and such a choice is not open to challenge once it has been resorted to according to law unless on grounds of appeal.  However under certain specific legislations, e.g., Chapter 425, Fisheries Conversation and Management Act it is possible to impose fines and/or administrative penalties and upon compliance remove the necessity of reverting to the courts of criminal jurisdiction (Article 34(3), (4), Chapter 425, Laws of Malta[6]). 

3.                   Who decides on this choice?  What is the specific role of the prosecutor?

There is only one public prosecutor, the Attorney General who exercises independence before the Criminal Court and the Court of Criminal Appeal.  Whilst the Police initiate prosecutions, the Attorney General has the overall responsibility to oversee all prosecutions, issue directions to the prosecuting police officer, discontinue criminal proceedings, file bills of indictment and of any other powers conferred on him by any law in terms which authorize him to exercise that power in his individual judgment.  The Attorney General shall not be subject to the direction or control of any other person or authority (article 91(3), Constitution of Malta).  Additionally the Attorney General may send for trial by the Court of Magistrates any person charged with a crime punishable with imprisonment for a term exceeding six months but not exceeding ten years if there is no objection on the part of such person (article 370(3) Criminal Law, Laws of Malta).

The specific role of the prosecutor involves the processing of criminal inquiries and the filing of bills of indictment where this is warranted.  The prosecutor represents the Republic of Malta.  In court the prosecutor presents the case against the person accused of committing a crime.  A prosecutor doesn’t usually become involved in the police investigation. The police initiate criminal prosecutions.  As prosecutors, they decide what type of court the accused appears in on the basis of the type of charges proferred against him.  Certain prosecutions initiated by the Police require the previous consent or direction of the Attorney General.  Although the Attorney General is never the prosecutor before the courts of magistrate’s, the police may be assisted before those courts by the Attorney General or his officers, or any lawyer even though, at this stage, he has no authority to impose on the police or on the investigating magistrate how the investigation should be conducted.  While police initiate proceedings, it is practice that prior to filing of charges of any individual that they discuss matters with the Attorney General to establish if there are relevant charges. 

Under Maltese criminal law, criminal offences may be tried on indictment – a more formal procedure used in the Criminal Court, which is a superior court, usually before a jury) or offences may be tried summarily – a much less formal procedure before the Court of Magistrates presided over only by a Magistrate – or offences may be tried either way, by the Criminal Court or by the Court of Magistrates depending on the decision of the Attorney General and sometimes on the consent of the person charged.  As from February 2007, if the Attorney General is of the opinion that there are not sufficient grounds for the filing of an indictment against the accused, he may, within the terms prescribed in the last preceding article, by warrant under his signature, order the discharge of the accused, filing a declaration to that effect in the Criminal Court.  The Attorney General may also withdraw an indictment already filed, by making in court a declaration to that effect.  Additionally, the Attorney General may also within one month from the day on which the record of inquiry shall have been transmitted to him, apply to the Criminal Court for the issue of a warrant for the arrest of any person discharged by the Court of Magistrates.[7]

The courts of criminal competence are the Courts of Magistrates, the Criminal Court and the Court of Criminal Appeal. The Court of Magistrates may function as either a Court of Criminal Judicature and has full competence to decide the merits of the charge, in respect of offences which may be tried summarily only, or in respect of offences which may be tried either way subject to the direction of the Attorney General and the consent of the person charged. The Court of Magistrates when dealing with offences which either exceed its competence and are triable on indictment or else in the event that an offence may be tried summarily but the consent for having the case heard summarily of either the Attorney General or of the person charged has been withheld, then this Court functions as a Court of Criminal Inquiry.

The Criminal Court, which is a superior court, has competence to try offences on indictment which indictment is filed by the Attorney General following inquiry proceedings before the Court of Magistrates as a Court of Criminal Inquiry. In trials on the merits, the Criminal Court is assisted by a jury made up of nine lay persons.

Decisions on the merits, i.e. on the guilt or otherwise of the person charged, given by the Court of Magistrates as a Court of Criminal Judicature may be appealed before the Court of Criminal Appeal presided by one judge. Decisions given by the Criminal Court may be appealed before the Court of Criminal Appeal presided by three judges.

The exercise of the criminal action  lies with the police ex ufficio who also act as prosecutors before the Court of Magistrates whether as Court of Criminal Inquiry or as a Court of Criminal Judicature. Although the Attorney General is never the prosecutor before the Courts of Magistrates the police may be assisted before those courts by the Attorney General or his representative. There are, however certain offences in respect of which criminal proceedings can only be instituted on the authority of the Attorney General, other proceedings can only commence upon a complaint by the injured party or upon the authorisation of some public authority other than the Attorney General for instance the Comptroller of Customs in respect of customs offences.

The original competence of the Court of Magistrates as a Court of Criminal Judicature, as established in article 370(1) Criminal Code, appertains only to decide cases dealing with all contraventions (minor offences) established in the Criminal Code, all crimes provided for in the Criminal Code (but whose penalty is that either afforded to contraventions in the Code, or a fine, or imprisonment for a period not longer than six months coupled with or without the payment of a fine or interdiction), and all those other crimes and contraventions created by other laws but whose punishment is that afforded immediately prior unless the special law provides otherwise. The simplified procedure, known as summary proceedings, arises out of article 370(4) Criminal Code, whereby if the charges filed against an individual are liable to imprisonment for more than six months but less than four years, the Court is obliged to ask the person so charged, during the questioning, without oath of the same person charged, whether such person objects to his case being heard summarily. In the eventuality that the person so charged does not object to his case being tried summarily, and then the Court asks the prosecuting officer, whether the Attorney General objects to this particular case being heard so. Should the Attorney General agree, then the Court of Magistrates who until that time was a Court of Criminal Inquiry transforms itself into a Court of Criminal Judicature competent to hear all evidence and decide the case itself instead of having the case being referred to the Criminal Court upon an indictment filed against the offender by the Attorney General. This procedure is widely used on a very regular basis. Summary proceedings tend to be more expedient and more cost effective for all parties involved, i.e. the Court, the prosecution and also the defence.

When a person is eventually charged with the commission of an offence triable on indictment only or triable either way, whether as the result of investigations by the investigating magistrate or investigations by the police, the person charged is arraigned before the Court of Magistrates as a Court of Criminal Inquiry. At this stage there is a person formally charged with the commission of an offence. The function of the Court of Criminal Inquiry is to have all available evidence of the charge produced in the presence of the person charged in adversarial judicial proceedings where the person charged is entitled to assistance by legal counsel. At the end of the collection of evidence the court must decide whether there is sufficient prima facie evidence to commit the person charged to stand trial on indictment. If so it will refer the record to the Attorney General for that purpose. If it is of the opinion that there is insufficient evidence for the purpose it will discharge the person charged and again refers the record to the Attorney General. The Attorney General at this stage has several powers that he can exercise. The decision as to which of these powers he shall use, is an exclusive decision reserved to the Attorney General, who in practise delegates this decision to one of his officers. Some of the most important powers/options available to the Attorney General as listed hereunder:

-    if the person charged has been discharged by the court of magistrates, the Attorney General may, if he is of the opinion that sufficient evidence for an indictment exists, and a judge not ordinarily sitting in the Criminal Court or in the Court of Criminal Appeal agrees with him, order the re-arrest of the person discharged so that the proceedings may continue to take their course;

-    if the person charged has been committed to stand trial on indictment, the Attorney General if he disagrees with the Court of Magistrates may discharge that person by filing a note to this effect before the Criminal Court – the power of nolle prosequi;

-    if the person charged has been committed to stand trial on indictment, and the Attorney General finds the same record to be defective, he may send it back to the Court of Magistrates and request that the defect be remedied;

-    if the person charged has been committed to stand trial on indictment, and the Attorney General believes that further evidence, considered by him to be appropriate, should heard, then he may re-submit to the Court of Magistrates the record of the case asking it to hear such evidence, which request cannot be refused by the court nor altered in any manner;

 
-    if the Attorney General is of the opinion that there is not sufficient evidence of an offence within the competence of the Criminal Court but there is evidence of an offence within the competence of the Court of Magistrates as a Court of Criminal Judicature, he will not file a bill of indictment but will send the record back to the Court of Magistrates for a decision in respect of the charge within its competence. Once the Court of Magistrates as a Court of Criminal Inquiry receives this record accompanied with the Attorney General’s note to this effect, should the person charged not object to his case being tried summarily, then this court converts itself into the Court of Magistrates as a Court of Criminal Judicature; or

-    if the Attorney General is satisfied that sufficient evidence exists he may file a bill of indictment before the Criminal Court.

Should the need be felt to change or amend the bill of indictment while that case is pending in court, this may only be done according to the provisions of articles 597(1) and 597(2) Criminal Code. The Criminal Court may order the correction of the bill, in the first scenario contemplated, either upon a plea filed by the accused or upon the Court’s own initiative (ex officio) and in the second scenario upon a plea filed by the Attorney General upon the identification of a mistake or procedural error. Furthermore article 599 Criminal Code holds that the Criminal Court may order the correction of the bill at any instant prior to the issuing of the verdict by the jury provided that such correction relates to an error that is found in the bill as a result of the evidence heard before the same court. Provided such errors relate to circumstances of time, place and person, when, where, against whom the offence was committed, or as to the indication or description of the things on which the offence was committed. What has to be clearly kept in mind is the fact that, under no circumstance may the offence be changed into one of a graver nature following the correction. Furthermore should the error in the bill of indictment amount to a wrong reference to the article of the law under which punishment is being requested, a correction in this regard may be corrected at any stage up to the delivery of the judgment.

When dealing with withdrawal of a bill of indictment articles 433(2) and 600 Criminal Code, have to be read together in this regard. The withdrawal may only be made at the sole discretion of the Attorney General, prior to the accused pleads to the general issue of guilty or not guilty, and in any such case all further proceedings shall be stayed, and the accused shall be discharged. The Attorney General files a note to this effect before the Criminal Court – the power of nolle prosequi. Should the accused have already pleaded to the general issue of guilty or not guilty, the indictment may not be withdrawn without the consent of the accused. Furthermore, in either case, the withdrawal of the indictment shall not operate so as to bar the taking of entirely new proceedings against the accused, on the discovery of fresh evidence.

The role of the Attorney General during and after the trial stage before the Criminal Court is heavily regulated by the provisions of the Criminal Code. The Attorney General makes an opening speech, presents the evidence for the prosecution, examines witnesses produced by him and cross-examines witnesses produced by the accused, makes submissions to the Court on all points of fact and law and after conviction produces evidence, if any, and makes submissions as to the appropriate sentence. The Attorney General is not directly concerned with the execution of sentences which fall within the competence of the officers of the competent court but he does monitor the execution of such sentences should the need arise.

The prosecution’s right of appeal from judgments of the Court of Magistrates lies with the Attorney general although he is not a party to the case in which judgment has been given by that Court. The police have to decide whether to file a note of appeal but it is the Attorney General who has the final say as to whether an appeal should be filed or not. Should the person charged upon being asked by the Court, at the very beginning, whether he declares himself guilty or not guilty, declare himself guilty, the Court is to give judgment as soon as possible and practicable. In such a case the Court is obliged to submit the record of this case together with a copy of its decision to the Attorney General. Should he decide to file an appeal from this latter decision, no note to this effect needs to be filed by the police.

4.            Are there criteria for abandoning the criminal prosecution approach?

An alternative to prosecution includes turning state evidence.  As a result of this, by means of article 93(1) of the Constitution of Malta the President shall have the power to grant to any person concerned in an offence a pardon, either free or subject to lawful condition[8]. 

The Attorney General under article 19(1) Chapter 326 Permanent Commission Against Corruption Act “may, if in his individual judgment he is satisfied of the advisability so to do, issue a certificate in writing exempting any person mentioned therein from any criminal proceedings on condition that such person gives evidence according to law of all the facts known to him relating to any corrupt practice or any offence connected therewith before the Commission and, or, any court of criminal jurisdiction, and on the issue of such certificate and the giving evidence in accordance therewith by the person to whom it refers, no proceedings before a court of criminal jurisdiction may be taken or continued against him in connection with such corrupt practice or any offence connected therewith” [9].

5.           Could it happen that a serious offence escapes any prosecution because of alternative measures?

Since serious offences fall under the mandatory regime of prosecution, this possibility is not envisaged either theoretically or practically in terms of Maltese criminal law.[10]

6.           Are victims informed beforehand, consulted, and can they challenge the decision in the case when criminal prosecution was dropped, and how are their rights preserved?

As alternatives to prosecution are limited, there is limited scope where it expands into collective public interest.  In view of amendments recently introduced, whilst victims are kept abreast of developments by the prosecution, they can also choose to be present in cases of mandatory criminal prosecution.  In this case the victim can participate in the case and be represented, and can also make submissions with regards to sentencing when there has been a verdict of guilt.

The position of victims of crime in Malta's criminal justice system was mainly as witnesses to the prosecution. However, some legal provisions gave victims certain rights since (Chapter 9 Laws of Malta). For instance:

Admittance into the proceedings

Any person not served with a police summons, and claiming to be an injured party, may apply to the court to be admitted into the proceedings as an injured party. If his or her claim that he or she is an injured party is allowed by the court that person shall thereupon have the right to be present at all subsequent hearings even if he is a witness. 

With regards to instituting criminal proceedings, the victim has the right to proceed with the case himself in the case of original competence in the Magistrates Court.

Criminal proceedings may not be instituted except on the complaint of the injured party in seven cases that follow. The complaint has to be made within four days from the commission of the offence.

-       Slight bodily harm.

-       Cases involving defamation.

-       Certain cases of fraud.

-       Cases of copyright.

-       Cases of spoil or damage.

-       Cases of harm through carelessness.

-       Cases of insults.

In proceedings instituted on the complaint of the injured party, the following provisions shall apply:

1.     the complainant and the defendant shall appear personally on the day appointed for the hearing of the complaint. They may, however, be assisted by advocates or legal procurators;

2.     in the case of contraventions, it shall be lawful for the court, upon good cause being shown, to exempt either of the parties from appearing personally and to permit the husband or wife or a near relative, by blood or affinity, of such party, or any other person having the charge of such party or authorized in writing by such party, to appear instead;

3.     if neither of the parties shall appear, the cause shall be struck off the list;

4.     if the complainant does not appear and the defendant alone appears, the latter may demand his discharge;

5.     nevertheless, upon an application by the complainant within four days from the day on which the cause was struck off the list or the defendant was discharged, accompanied by a declaration of the complainant himself sworn before the registrar, to the effect that he was, on account of illness or for any other reason independent of his will, to be expressly stated in the application, prevented from appearing, the court shall appoint another day for the hearing of the cause on the same acts;

6.     a written notice of the day appointed for the hearing of the cause shall be given to the parties and to the witnesses within the time prescribed in by law;

7.     in the absence of an application as aforesaid, the right of action shall lapse;

8.     if the defendant does not appear, he or she shall be arrested and brought before court;

9.     if both parties appear, the proceedings shall be conducted summarily and viva voce in the following order:

1.     the complainant or his advocate or legal procurator shall state the facts constituting the offence and shall produce his evidence;

2.     the defendant or his advocate or legal procurator shall submit his defence and shall produce his evidence;

3.     the complainant or his advocate or legal procurator may reply, and the defendant or his advocate or legal procurator is entitled to a rejoinder: Provided that it shall be lawful for the court, on good grounds, to vary the order of the proceedings;

10.  it shall be lawful for the court to require that the complaint be made or confirmed on oath.

Terminating criminal proceedings

When proceedings cannot be instituted except on the complaint of the private party, the complainant may, at any time before final judgment is delivered, waive his complaint.

The party charged or accused may object to any such waiver, in which case the trial shall be proceeded with as if the complaint had not been waived.

If the complaint is waived after the opening of the trial and it appears that the complaint is frivolous or vexatious, or made with the object of extorting money or other effects, or of making any other gain, the court may, notwithstanding the waiver, proceed to deliver judgment, acquitting the person charged or accused and directing that proceedings be instituted against the complainant according to the gravity of the case.

Notwithstanding these provisions, substantial victim-oriented reforms were made from 2002 onwards, namely:

Compensation

Everyone who has been the victim of arrest or detention against his or her right to liberty and security of person shall have an enforceable right to compensation.

Everyone who has clearly and conclusively been a victim of a miscarriage of justice due to some serious failure in the judicial process involving grave prejudice to the convicted person has a right to compensation.

Everyone who may have been the victim of discriminatory action or sanction due to the fact that, having reasonable grounds to suspect corruption, reported in good faith their suspicion to responsible persons or authorities, has a right to compensation for any damage caused to him/her by such discriminatory action or sanction.

Compensation for damage caused to a victim by an offence can always be demanded by a civil action prosecuted before the Civil Courts (Laws of Malta, VI. 1871.1: Chapter 9, Criminal Code, article 3, paragraph 2).

In the Criminal Courts, when making an order for suspended sentence, the court may enter a ruling obliging the offender to make restitution to the victim of anything stolen or knowingly received or obtained by fraud or other unlawful gain by the offender to the victim’s detriment by or through the offence to which the suspended sentence relates (ibid., XXIX. 1990.3: Chapter 9, Criminal Code, article 28H).

Together with such restitution, the court may also oblige the offender to pay the victim a sum of money as compensation for any such loss or damages or other injury or harm caused to him/her by or through the offence. In so doing, the court shall fix the time limit, not being longer than six months from the date of the ruling, within which the restitution or compensation must be made to the victim by the offender. No appeal by the offender against such a ruling can be made (ibid., article 28I).

It is the court itself that determines the amount of compensation to be paid to the victim by the offender. The court shall do so after hearing both sides, if the victim and the offender so wish, and also any other evidence, including that of experts, it may deem relevant. If the offender fails to pay within the time fixed by the court, the victim may submit a sworn application to the court not later then three months after the expiration of the time limit. In not more than seven days from the date of the victim’s application the court shall appoint a date and time for hearing both parties.

If, after such hearing, the court is satisfied that the offender has failed to comply with its ruling, it shall order that the suspended sentence shall take effect. The court may, however, for reasonable cause, grant to the offender a further period not exceeding one month for complying with the ruling.

Again in the Criminal Courts, when an offender is convicted, the prosecution or the victim’s representatives at court (as the lawyer for the victim) should ask the court to consider ordering the offender to pay some compensation to the victim. These may contend that, if the court is considering that offender pays compensation as well as a fine (‘multa’ in Maltese), compensation for the victim should come ahead of any fine. In any case, compensation may have to be reduced to what the offender can reasonably afford, so it may not cover the injury or loss completely. Larger sums are generally payable in installments. Despite these drawbacks, compensation is valuable as a token to the victim, and as a means of bringing home to the offender the consequences of his/her action. This is why the prosecution must be ready to inform the court of the extent of the victim’s losses.

This procedure is intended to give a victim the chance of receiving some compensation without being put into further inconvenience by undertaking civil action. Unless, that is, when the victim’s losses are not disputed, hard to assess or quite high. In such cases, if the victim thinks that the offender has the means to pay, it may advisable to make a civil claim for damages.

Presence at court proceedings

Any victim of crime who has an interest in being present during any proceedings instituted by the Police shall have the right to communicate that interest to the police giving his or her particulars and residential address whereupon that injured party shall be served with a notice of the date, place and time of the first hearing in those proceedings, and shall have the right to be present in court during that and all subsequent hearings even if he is a witness.

Any victim of crime not served with the notice, and claiming to be a victim in the case, may apply to the court to be admitted into the proceedings as a victim. If his claim that he is a victim in the case is allowed by the court that person shall thereupon have the right to be present at all subsequent hearings even if he is a witness.

The failure to serve the victim with the notice of the date of the first hearing after an attempt has been made to that effect, or the absence for any reason of the victim at any sitting, shall not preclude the court from proceeding with the trial or inquiry until its conclusion.

Assistance in Court

In any proceedings instituted by the police on the complaint of the victim, it shall be lawful for the victim to be present at the proceedings, to engage an advocate or a legal procurator to assist him or her, to examine or cross-examine witnesses and to produce, in support of the charge, such other evidence as the court may consider admissible.

Submissions to the Court

On any appeal against sentence the victim may, by application, request the Court of Criminal Appeal to be allowed, personally or through legal counsel, to make submissions on the appropriate sentence to be passed on the accused. If the court allows the application the victim or his legal counsel shall be given the opportunity to make such submissions after the court has heard the appellant’s submissions in support of the appeal. The person convicted and the Attorney General shall be given the opportunity to respond to the submissions by the victim or his legal counsel.

However, if for any reason the victim or his legal counsel fails to make submissions on sentence on the appointed day, the court shall not be precluded from proceeding with any hearing or from pronouncing judgment.

Receive payment of sustained damages in some cases

A court, on making a probation order, community service order, combination order, an order for conditional discharge or on discharging any offender absolutely may, without prejudice to its power of awarding costs, order the offender to pay such damages for injury or compensation for the loss as the court thinks reasonable.

An order for the payment of damages or compensation as aforesaid may be enforced in like manner as if it had been given in a civil action between the offender and the person to whom the damages or compensation are ordered to be paid, provided that nothing shall derogate from any right of such person to recover any greater amount by any other means from the offender or any other person liable to pay the same.

Care and support in cases of domestic violence

The Minister shall designate one or more organizations, institutions or other bodies as the agency responsible for the provision of preventive, therapeutic and, or treatment programmes for victims and perpetrators of domestic violence.

The Minister shall assign those services to be provided by the designated organisation, institution or other body. The arrangements shall lay down the services which the organisation, institution or other body will be expected to provide for the duration of the arrangements and which shall include the following: -

(a) preventive, therapeutic and/or treatment programmes for victims and perpetrators of domestic violence;

(b) public help-line facilities for emergency access to specialised support services in those areas related to domestic violence;

(c) expertise for the assessment of the needs of victims of domestic violence, including the development of a care plan for each referral;

(d) sheltered accommodation for victims of domestic violence, including in partnership with other organizations, institutions or other bodies providing similar accommodation;

(e) the compilation and dissemination to interested persons and bodies of documentation on the rights of victims of domestic violence and on the remedies and services available to them; and

(f) the collation of data concerning domestic violence for use by the courts, prosecutors, law enforcement officers, health care practitioners, social workers and other agencies and entities, in a manner that protects the identity of victims of domestic violence.

The arrangements shall also provide for funding by the Minister of the services agreed upon with the organisation, institution or other body.

Recent Legislation

Under a new scheme introduced in 2006 (Article 698, Chapter 9, Laws of Malta) the Minister may make regulations to establish a scheme for the compensation of victims of crime under such conditions and restrictions and subject to such considerations and qualifications as the Minister may provide and to establish a fund to finance such a scheme.

7.         Given that the response chosen gives rise to obligations in respect of the persons subjected to it - such as the reparation of damage - are they able to lodge an appeal with an impartial authority (for example, for validation by a judge of a restraining order or an obligation to undergo training proposed by way of settlement)?

It is not possible to lodge an appeal with an impartial authority.  However victims can still request reparation through civil proceedings and in certain cases an administrative request to the government in certain grievous crimes.

In the case of alternative sanctions, there may be methods for quantifying the damages offered and it can be requested to be complied with as an administrative fine/penalty depending on the specific law.  In cases where you have mandatory prosecution and prior to a verdict of guilt, an independent court expert may be appointed by the court to quantify damages.  Once a finding of guilt has been established, and an appeal is lodged, then one of the appeal complaints can be a challenge to the quantum of damages. 

8.         Can you give specific examples of alternatives to prosecution which you see as particularly well suited to the prevention of reoffending by the perpetrator and consideration of victims' interests?

The victims are free to institute any civil proceedings simultaneously to criminal proceedings or following a conviction.

Alternatives to prosecutions can be found as fines or administrative penalties as set out in Chapter 174 - Financial Administrative and Audit Act[11], Chapter 330 – Malta Financial Services Authority Act[12], Chapter 371 – Banking Act[13], Chapter 376 – Financial Institutions Act[14], Chapter 399 – Electronic Communications (Regulation) Act[15], Chapter 409 – Malta Travel and Tourism Services Act[16], Chapter 411 – Civil Protection Act[17], Chapter 425 – Fisheries Conversation and Management Act[18], Chapter 437 – Veterinary Services Act[19], Chapter 438 – Lotteries and Other Games Act[20], Chapter 439 – Animal Welfare Act[21], Chapter 440 – Data Protection Act[22], Chapter 442 – Co-operative Societies Act[23], Chapter 468 – Social Work Protection Act of the laws of Malta[24].[25]

9.         Is there a method in your country for assessing the effectiveness of alternatives to prosecution and what is it?

Whilst the effectiveness of alternatives to prosecution are monitored, at present there is no established method for assessing the effectiveness of alternatives to prosecution. 

10.       Can you provide the contact details (with their consent) of someone clearly identified as a specialist on these questions and supply examples of their work to back up your choice?

Dr. Silvio Camilleri LL.D. K.O.M.,  Attorney General for the Republic of Malta, Head of the Criminal Law Department at the University of Malta.

Office of the Attorney General

The Palace

Valletta

CMR 02

11.       Other comments