Probation Act (Cap. 446), article 32

32. PROBATION [CAP. 446. 17 Contents of certificate. Added by: XXIII. 2012.13. 28A. A judgement transmitted in accordance with article 28, shall contain: (a) a statement that the judgement relates to: (i) conduct which is a scheduled offence: Provided that in such cases there shall be no verification whether the conduct is a criminal offence in Malta; or (ii) conduct which would constitute an offence under the law of Malta if it occurred in Malta: Provided that 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; and (b) information indicating the nature and duration of the supervisory measures. Mode of transmission. Added by: XXIII. 2012.13. 28B. (1) A judgement imposing a community sanction shall be transmitted with the certificate containing the information prescribed therein, by any means capable of producing a written record under conditions permitting the ascertainment of its authenticity. (2) If so required by the executing State, the original judgeme nt imposing the community sanction or a certified copy of it, and the original of the certificate, shall be sent to the executing Sta te. Attorney General’s certificate. Added by: VI. 2010.10. Substituted by: XXIII. 2012.14. 29. (1) Where the Attorney General receives a community sanction in terms of article 26(1)( a), the Attorney General shall, in his own individual discretion and subject to the provisions of article 30, issue a certificate to the effect that the judgemen t is one referred to in the Framework Decision and such certificate shal l be conclusive evidence of its contents. (2) Without the need of any further authority other than that conferred by this article, the judgement, together with the cer tificate referred to in sub-article (1), shall be transmitted to the cou rt of criminal jurisdiction for execution in accordance with article 29A. Execution, by courts, of community sanction orders. Added by: XXIII. 2012.15. 29A. (1) The following provisions shall apply where a judgement is transmitted to a court of criminal jurisdiction un der article 29(2). (2) The court of criminal jurisdiction, within sixty days of receipt of the judgement and the certificate, shall recognise t he judgement as if it were a sentence made by the said court impos ing a community sanction under this Act. (3) A copy of the judgement and the certificate shall be served on the sentenced person. (4) The judgement shall have the same effect as a sentence ordering a community sanction, u nder this Act, and the provisio ns of this Act shall mutatis mutandis apply to the said judgement, so however that any reference to a community sanction under this A ct shall be construed as a reference to the said judgement. 18 [CAP. 446. PROBATION (5) If, in exceptional circumstances, it is not possible for the court to comply with the time limit provided for in sub-article (2), it shall inform the competent authority of the issuing State by any means, giving the reasons for the delay and indicating the esti mated time needed for the final decision to be taken. Grounds for refusing recognition and supervision. Added by: VI. 2010.10. Amended by: XXIII. 2012.16. 30. (1) The Attorney General may refuse to recognise the community sanctions on the following grounds, in accordance wit h Article 11 of the Framework Decision : (a) the certificate is incomplete or manifestly does not correspond to the community sanction and has not been completed or corrected within a reasonable period set by the competent authority; (b) if the sentenced person is not resident in Malta and the sentenced person has returned or wants to return to Malta; (ba) if the sentenced person is not resident in Malta the said person requested the community sanction to be forwarded to Malta without the consent of the Maltese authorities; (bb) if the community sanction provides for supervisory measures other than those referred to under article 27; (c) the recognition of the community sanction and assumption of the responsibility for supervising community sanctions would be contrary to the principle of ne bis in idem ; (d) the judgment relates to acts which do not constitute an offence under the laws of Malta; (e) the enforcement of the sentence is barred by prescription according to the laws of Malta and falls within its competence according to that law; (f) there is immunity under the laws of Malta, which makes it impossible to supervise community sanctions; (g) under the laws of Malta, the sentenced person cannot, owing to his age, be held criminally liable for the offences in respect of which the judgment was issued; (h) the judgment was rendered in absentia , unless: (i) the certificate referred to in article 28(2) states that the person summoned personally or informed through a representative competent according to the laws of Malta of the time and place of the proceedings, or that the person actually received official information of the scheduled time and place of the proceedings and was also informed that a decision may be handed down if he does not appear for the proceedings; or (ii) the person had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to appear in PROBATION [CAP. 446. 19 his stead and that legal counsellor in fact appeared during the proceedings; or (iii) the person indicated to a competent authority that he does not intend to contest the charges against him; or (iv) subsequent to the decision, which would have been served upon him, the person concerned, after being informed of his right to appeal or to a retrial, expressly stated that he does not intend to contest the decision or did not contest such decision within the applicable time frame; (i) the community sanction provides for medical and, or therapeutic treatment which Malta is unable to supervise in view of its legal or healthcare system; (j) the community sanction is of less than six months’ duration; or (k) the judgement relates to criminal offences which under the laws of Malta are regarded as having been committed wholly or for a major or essential part within its territory, or in a place equivalent to its territory. (2) Where the certificate is incomplete or does not correspond to the community sanction, the Attorney General may postpone th e decision referred to under article 29 until a reasonable deadli ne is set for the certificate to be completed or corrected. Jurisdiction to take all subsequent decisions and governing law where Malta is the executing State. Added by: VI. 2010.10. Amended by: XXIII. 2012.17. 31. (1) Where Malta is the executing State, the court of criminal jurisdiction shall have jurisdiction to take all subse quent decisions relating to a community sanction, in particular in ca se of non-compliance with a community sanction or if the sentenced person commits a new criminal offence. Such subsequent decision s may include: (a) the modification of obligations or instructions contained in the community sanction or the modification of the duration of the community sanction; (b) the revocation of the suspension of the execution of the judgement or the revocation of the decision regarding a community sanction; and (c) the imposition of a custodial sentence or measure involving deprivation of liberty in case of a community sanction. (2) If the nature or duration of the relevant community sanction is incompatible with the laws of Malta when Malta is the execut ing State, the court of criminal jurisd iction may adapt them in line with the nature and duration of community sanctions, which apply und er the laws of Malta, to equivalent offences. The adapted communit y sanction or its duration shall correspond as far as possible to that imposed in the issuing State: Provided that where the community sanction or the duration 20 [CAP. 446. PROBATION of the community sanction has been adapted because its duration exceeds the maximum duration provided for under the laws of Malta, where Malta is the executing State, the duration of the adapted community sanction, shall not be below the maximum duration provided for equivalent offences under the laws of Mal ta: Provided also that the adapted community sanction shall not be more severe or longer than the community sanction which was originally imposed. (3) The court of criminal jurisdiction shall without delay reque st the Attorney General to inform the competent authority of the issuing State, by any means which leaves a written record, of a ll the decisions taken on: (a) the modification of community sanction; (b) the revocation of the suspension of the execution of the judgement or revocation of the decision regarding a community sanction; (c) the enforcement of a custodial sentence or measure involving deprivation of liberty, because of non- compliance with a community sanction; (d) the lapse of the community sanction. (4) If so requested by the competent authority of the issuing State, the Attorney General, upon a request by the court of cri minal jurisdiction, shall inform it of the maximum duration of deprivation of liberty that is foreseen in the national laws of Malta for t he offence which gave rise to the judgment and that could be impos ed on the sentenced person in case of breach of the community sanction. This information shall be provided immediately after receipt of the community sanction together with the necessary certificate. End of jurisdiction of the executing State. Added by: VI. 2010.10. Amended by: XXIII. 2012.18. 32. (1) Where Malta is the executing State, if the sentenced person absconds or no longer has a lawful residence in Malta, t he court of criminal jurisdiction may transfer the jurisdiction in respect of the supervision of all further decisions relating to the jud gement back to the competent authority of the issuing State. (2) If new criminal proceedings against the person concerned are taking place in the issuing State, the c ourt of criminal jurisdiction of the issuing State may request the court of crim inal jurisdiction to transfer jurisdiction in respect of the supervi sion of the community sanction and in respect of all further decisions relating to the judgement back to it. (3) When, in the application of this article, jurisdiction is transferred back to the issuing State, the competent authority of that State shall resume jurisdiction. For the further supervisi on of the community sanctions, the competent authority of the issuing State shall take account of the duration and degree of complian ce with the community sanctions in Malta, as well as of any decisi ons taken by Malta in accordance with article 31(3). PROBATION [CAP. 446. 21 Information from the executing State in all cases. Added by: VI. 2010.10. Amended by: XXIII. 2012.19.