WORLD FACTBOOK OF CRIMINAL JUSTICE SYSTEMS Malta by Nancy Grosselfinger University of Malta This country report is one of many prepared for the World Factbook of Criminal Justice Systems under Grant No. 90-BJ-CX-0002 from the Bureau of Justice Statistics to the State University of New York at Albany. The project director for the World Factbook of Criminal Justice was Graeme R. Newman, but responsibility for the accuracy of the information contained in each report is that of the individual author. The contents of these reports do not necessarily reflect the views or policies of the Bureau of Justice Statistics or the U.S. Department of Justice. GENERAL OVERVIEW 1. Political System. At the executive level of government, there are two Ministries which administer the criminal justice system of Malta, the Ministry of Justice and the Ministry of Home Affairs. The former is responsible for the administration of the courts and for proposing and piloting laws in the House of Representatives. The latter is responsible for the Police and Correctional Institutions. The Ministry of Justice (Attorney General's Office) and the Ministry of Home Affairs (Police) are responsible for the prosecution of offenders. The Judiciary enjoys absolute independence from the other branches of government. 2. Legal System. The Maltese legal system, in all its jurisdictions is essentially adversarial and is regulated by specified rules of procedure contained in the Criminal Code and in the Code of Organization and Civil Procedure. 3. History of the Criminal Justice Systems. Many components of the legal system of Malta originated in the last century when the Island was occupied by the British. However, in spite of a century and a half of British rule, Malta's legal system retained its civil law origin which was already deeply rooted when the British arrived. Various principles of common law, however, have been introduced in Maltese public law and it is a generally accepted maxim that in the absence of a specific provision in the law, the principles of British public law normally apply. Maltese criminal law is perhaps the best example of this fusion of civil law principles with those of common law. The Maltese Criminal Code, which was first enacted in 1854, was modeled on the contemporary Italian and French Codes as far as substantive criminal law is concerned, but incorporated the English and Scottish rules for purposes of criminal procedure. Since its promulgation, the Criminal Code has undergone several amendments in a continuous attempt to keep the notions of crime and punishment in line with the changing forms of criminality and the evolving conceptions of due process. Today, the concept of a fair hearing is regulated by the Code, the Constitution and the European Convention on Human Rights. CRIME 1. Classification of Crime. * Legal classification. The Criminal Code distinguishes between crimes and contraventions, the former being of a more serious nature. Crimes include treason, coup d'etat, insurrection, willful homicide, bodily harm, theft, receiving stolen property, misappropriation, assault and resistance against police officers, bribery, abuse of power, rape, prostitution, indecent assault, defilement of minors, forgery, fraud, perjury and many others. Apart from this, however, various other laws exist which establish a great number of other crimes not listed in the Code, such as drug abuse and trafficking, money laundering, electoral fraud, and counterfeiting of money. Contraventions include disturbance of public peace, swearing, unlawful betting, various traffic offenses, dumping of garbage, failure to pay maintenance, drunkenness, vagrancy, minor assault, and threatening. The Criminal Code deals with some contraventions while others are to be found in the Code of Police Laws and various Acts of Parliament. * Age of criminal responsibility. Criminal responsibility starts from the age of nine. Between the ages nine and fourteen, a person is presumed to be incapable of forming a malicious intent. However, criminal responsibility can be established, if it is proved that the person acted with mischievous discretion. Between the ages of fourteen and eighteen, a person is deemed to be able to form criminal intent, and, if found guilty, can be sentenced to imprisonment. However, the Code provides for a reduction in sentence. * Drug offenses. The unlawful use of drugs and their trafficking is regulated by the Dangerous Drugs Ordinance, 1939 as amended. Unlawful drugs include raw opium and coca leaves, prepared opium, marijuana, cocaine, morphine and its derivatives and various other pharmacological combinations. 2. Crime Statistics. The following statistics are derived from the 1993 Annual Report of the Police. * Murder. In 1993, the police recorded 7 cases of willful homicide and 7 cases of attempted murder. (Editor's note: In 1994 the population of Malta was 367,000.) * Rape. In 1993, the police recorded 5 cases of forcible rape and 8 cases of attempted rape. * Theft. In 1993, the police recorded a total of 2,614 cases of theft. * Serious drug offense. In 1993, the police recorded 138 cases of drug crimes, which included drug possession and/or trafficking. Attempts are included. * Crime regions. Information not available. VICTIMS 1. Groups Most Victimized by Crime. Information not available. 2. Victims' Assistance Agencies. During 1993, a domestic violence victim assistance unit within the Police Corps was created consisting of three female police officers and a supervising sergeant. In 1987, a system for compensation to crime victims was established within the Ministry of Justice by a Cabinet of Ministers decision (Memo 168). Since 1987, compensation payments have totaled approximately 10,000 Maltese pounds (LM). This system was created as an interim measure until appropriate legislation governing compensation for victims of crime is enacted. Payments are given on an ex gratia basis to persons who have suffered bodily harm. It is limited to those cases where bodily harm is caused in any of the following cases: a) a breakdown of law and order, b) when those responsible for law and order are themselves in breach of the law, and c) the harm is suffered by members of the security forces in the course of their duties as a result of a criminal offense. The amount of compensation is determined in each case on the advice given by specialists who follow the criteria established by the courts in awarding damages. 3. Role of Victim in Prosecution and Sentencing. There are some crimes and contraventions which are only prosecutable upon the private complaint of the citizen. In these cases, prosecutorial action is withdrawn if the complainant drops the accusation. Examples are those cases which involve slander, certain instances of defilement of minors, slight bodily harm, minor cases of willful damage, and minor cases of involuntary bodily harm. In all other cases, where the action is taken ex officio, the victim has a right to be represented by counsel during the proceedings of the first instance only, during which witnesses can be produced and others cross-examined. 4. Victims' Rights Legislation. Aside from the above-mentioned 1989 victims' compensation scheme, there is no other victims' rights legislation. POLICE 1. Administration. The Police represent a component of the Ministry of Home Affairs and Social Development. The corps is headed by a Commissioner of Police assisted by four Deputy Commissioners. The Police and the Armed Forces are separate organizations. However, the Military is permitted in limited circumstances (e.g. evasion of customs duty and drug offenses), to perform traditional police functions. Police subdivisions include intelligence, vice squad, special assignments group, immigration, licensing, traffic, fire brigade, cavalry, forensic laboratory, garage, weapons, police academy, personnel and criminal investigation. 2. Resources. * Expenditures. The approved estimated budget for police expenditure in 1994 is of LM 8,819,000. (In 1993, the approved estimated budge for police was LM 7,984,000). The approved estimated budget for capital expenditure in 1994 is LM 350,000. (In 1993, the approved estimated budget for capital expenditure was LM 320,000). * Number of police. For 1993, the police force included 11 superintendents, 56 inspectors, 24 sergeant majors, 244 sergeants, and 1,187 constables. There were 200 women in the Police Corps in 1993. 3. Technology. * Availability of police automobiles. There are 403 vehicles at the disposal of the Police including 82 motorcycles. The ratio of police to vehicles is approximately four to one (4:1). * Electronic equipment. The Police are equipped with computer aided dispatch equipment, a computerized recording system, and radio communications equipment. * Weapons. Police normally do not carry weapons. However, handguns and batons are available. The Special Assignment Group (SAG) is further equipped with rifles, shotguns, tear gas and bulletproof vests. 4. Training and Qualifications. Police recruits are selected after a call for applications. A school leaving certificate is required as a minimum academic qualification. The recruit must be at least 18 years-old, have a record of good conduct, and be of a specified height. Successful recruits complete six months of Police Academy training, whereupon they are appointed constables. Constables, or cadets, thereafter, follow a two year course at the Police Academy. There are periodic in-service refresher courses for senior level police officers. The faculty of the Police Academy includes current and retired senior officers, lawyers, university lecturers and occasionally Magistrates. 5. Discretion. * Use of force. The law requires that a police officer shall not use any harshness or other means of restraint unless required or rendered necessary by the insubordination of the person arrested. * Stop/apprehend a suspect. A police officer is bound by law to present the suspect before the appropriate court forty-eight hours from the time of arrest. * Decision to arrest. The Police have a duty under the law to preserve order and peace, to prevent, detect and investigate offenses, to collect evidence and to bring the offender before the courts. They also have the duty to issue and to serve citations summoning persons to appear before the court. In the exercise of these duties, the Police have the power to arrest any person who has committed, or is reasonably suspected of having committed any crime punishable with imprisonment with the exception of the crimes punishable under the Press Act, 1974. In all other cases, the Police can effect an arrest of a person who is caught in flagrante or if the arrest is necessary to prevent the commission of a crime. Every police officer is also empowered to arrest a person who, after due warning, knowingly obstructs or disturbs the execution of police duties or disobeys lawful orders. The police officer investigating a suspect, may resort to a formal cautioning in lieu of prosecution in minor cases where the person initiating the complaint has expressed a preference for this alternative. * Search and seizure. Police officers from the rank of inspector upward have a right to search a person and/or property without a warrant. There are, however, four instances, when a police officer below the rank of inspector can search without a warrant: a) when there is an imminent danger that the suspect may escape or that the means of proving the offense will be suppressed; b) when the suspect is detected in flagrante; c) when the intervention of the police is necessary in order to prevent the commission of a crime; d) when the entry is necessary for the execution of any warrant or order issued by a competent authority. The police powers of search are otherwise limited only by the notion of what is reasonably justifiable in a democratic society. * Confessions. Police officers are bound to inform suspects of their right to silence. Any confession, to be admissible as evidence, must be proven to be voluntary, not under duress, and obtained without the promise of any favor. The burden of proving whether or not a confession is voluntary rests on the prosecution. During the investigation stage and until arraignment, the suspect, if under arrest, does not have the right to be assisted by counsel or to contact any person. In the investigation of any crime, arrest is not mandatory if it is deemed sufficient to issue a summons to guarantee the suspect's appearance in court. 6. Accountability. Complaints against the police may be filed with the Commissioner. In 1991 there were 268 cases under review. The Commissioner also has the discretion to refer cases to the Public Service Commission, a governmental body created by the Constitution to exercise discipline over government employees. In addition, alleged human rights violations can be reviewed by the Constitutional Court. PROSECUTORIAL AND JUDICIAL PROCESS 1. Rights of the Accused. * Rights of the accused. The accused is guaranteed a fair hearing by the Criminal Code, the Constitution, and the European Convention Act of 1987. Briefly, this includes the basic notions of due process as laid out in the European Convention on Human Rights and the right of individual petition to the Commission of the European Court of Human Rights. The nature of the charge determines the court by which the accused is tried. In certain cases, the accused is tried by the Magistrates Court presided over by a Magistrate only. There are other cases where the accused can choose to be tried by a jury before the Criminal Court, and others where a trial by jury is proscribed. At the request of the accused, there may be a trial by judge without a jury. In all instances, the accused has a right of appeal. The accused has a right to plead guilty, but may not do so to a lesser offense unless the prosecution concurs. The accused can call witnesses and cross-examine those of the prosecution. Additionally, if the accused is not testifying, s/he cannot be the subject of adverse comments by the prosecution. The accused also has a right to be given sufficient time to prepare a defense. Normally, trials are held in public, although some legal exceptions do exist. * Assistance to the accused. The accused have a right to be assisted by counsel of their own choice and if they cannot afford it, are entitled to have a counsel assigned by the presiding judge or magistrate at public expense. A lawyer who has been so assigned to defend an accused must have just cause for refusing the appointment. 2. Procedures. * Preparatory procedures for bringing a suspect to trial. A trial is normally preceded by a police investigation, followed by arrest and arraignment in court. Arraignment cannot be delayed more than 48 hours after arrest. In certain instances, however, the law provides for an inquiry to be carried out by a Magistrate whose functions include the collecting of evidence. * Official who conducts prosecution. Prosecution before the Magistrates Court is conducted by a Police Inspector. An attorney from the Attorney General's office prosecutes before the Criminal Court and the Court of Criminal Appeals. * Alternatives to trial. Except in those cases where the charge can be waived by the complainant before the commencement of the trial, there are no alternatives to going to trial. Plea-bargaining is not provided for in the law. However, in practice, it is sometimes resorted to although the court is not bound by it. * Proportion of prosecuted cases going to trial. There are no statistics available on the proportion of prosecuted cases which actually go to trial. In fact, Maltese Court Statistics do not delineate how most cases are resolved. In major criminal offenses, however, it is very rare for a guilty plea to be entered. * Pre-trial incarceration conditions. Information not available. * Bail Procedure. It is the responsibility of the accused to petition for bail, which can be refused if it is proved by the prosecution that there are reasons to believe that the accused would likely abscond from the jurisdiction or tamper with the evidence of the prosecution. The granting and/or withholding of bail is regulated by the Criminal Code. Following a recent judgment of the Constitutional Court, the Code was amended making it mandatory on the courts to grant bail in each case where pre-trial incarceration is no longer required, or when a statutory fixed time limit has expired without the trial having commenced. When an application for bail is filed by the accused, the court is bound to serve a copy of the application to the Attorney General on the same day of filing and must schedule a hearing without delay. If the application for bail is denied, there is no right of appeal but a fresh application may be filed. If bail is at any time forfeited, then the court is precluded from providing subsequent bail. * Proportion of pre-trial offenders incarcerated. In 1991, there were 337 inmates awaiting trial. That year, approximately 60% of the prison population were in preventive detention. In 1990, 26 of 90 foreign nationals were awaiting trial. JUDICIAL SYSTEM 1. Administration. The Courts of Civil Jurisdiction in Malta are divided into two separate tiers, the Superior Courts and the Inferior Courts. The Superior Courts include the Constitutional Court, the Court of Appeal, the Civil Court, and the Commercial Court. The Inferior Courts include the Court of Magistrates on the island of Malta, and b) the Court of Magistrates on the island of Gozo. The Courts of Criminal Jurisdiction are also divided into two separate tiers, the Superior Courts and the Inferior Courts. All Courts of Criminal Judicature are established by the Criminal Code. The Superior Courts include the Court of Criminal Appeal and the Criminal Court. The Inferior Courts include the Court of Magistrates on the island Malta and the Court of Magistrates on the island Gozo. 2. Special Courts. The Juvenile Court represents the most significant special court. It is regulated by the Court Act of 1980 and is presided over by one magistrate. However, in its proceedings, the Juvenile Court is assisted by two persons, one of whom has to be female. This court deals with all criminal offenses allegedly committed by an individual under the age of sixteen. 3. Judges. * Number of judges. At the Superior Courts level there are 14 judges and the Chief Justice who acts as the President of the Constitutional Court and of the Court of Appeal. At the Inferior Courts level, there are 14 Magistrates, one of whom is female. * Appointment and qualifications. The appointment of Judges and Magistrates is regulated by the Constitution. Judges are appointed by the President of the Republic with the advice of the Prime Minister from advocates who have had at least 12 years practice at the Bar or who have served as Magistrates. Magistrates are appointed by the President of the Republic from advocates who have had at least 7 years practice at the Bar. Judges and Magistrates are not specifically trained to become members of the Judiciary. According to an amendment effective January 1994, the Prime Minister will seek the advice of a newly created Council for the Administration of Justice before making any judicial appointments. This Council is composed of the President of the Republic, the Chief Justice, two judges, two Magistrates, the Attorney General, the President of the Chamber of Advocates, a representative of the Government and a representative of the Opposition. PENALTIES AND SENTENCING 1. Sentencing Process. * Who determines the sentence? The judge or magistrate determines the sentence. * Is there a special sentencing hearing? The sentence is determined upon pleadings from counsel for defense and prosecuting officer either at the end of trial or in a separate sentencing hearing. * Which persons have input into the sentencing process? The Jury may recommend clemency. However, this is not binding upon the judge. At every stage of the criminal sentencing process, the judge may request the professional opinion of psychiatrists, psychologists, probation officers, social workers, medical specialists and religious persons and comments from victims. The judge is not bound by any of the professional opinions. In addition, the victim has no say in the sentencing process. 2. Types of Penalties. * Range of penalties. As per the Criminal Code the punishments that may be awarded for crimes include imprisonment, solitary confinement, interdiction, and fines. The punishments for contraventions include detention, fines and reprimand or admonition. Typically, convictions for willful homicide, grievous bodily harm (whether or not followed by death), theft aggravated by violence, rape, trafficking in drugs, escape from prison and arson upon conviction are followed by imprisonment. The Probation of Offenders Act of 1957, provides for unconditional discharge, conditional discharge and probation order. Since 1990, the Criminal Code also provides for suspended sentences. Foreigners may be deported upon conviction. * Death penalty. The death penalty is only contemplated for cases of treason in time of war. Execution is by hanging. No executions were carried out in the last 50 years even during years when the death penalty was still in the statute book for several major crimes. PRISON 1. Description. * Number of prisons and type. There is one prison which serves as the detention facility for the convicted, those awaiting trial and those awaiting removal from the Island. This facility includes space for males and females, housed separately, and young offenders 16 years of age and older. * Number of prison beds. The maximum capacity of the prison is approximately 800. However, in the past 7 years, the average daily population has not surpassed 200. * Number of annual admissions. In 1991 admissions amounted to 519, 19 of whom were female, and 90 of whom were foreign nationals. Foreign nationals are most frequently of African origin. * Average daily population/number of prisoners. In 1991, the average daily population was 109. * Actual or estimated proportions of inmates incarcerated. The average number of admissions of sentenced persons for 1991 were as follows: Drug Crimes 20 *** Violent Crimes 5 **** Property Crimes 73 ***** Other Crimes 38 ****** *** The average number of admissions of sentenced persons for drug crimes for previous years: 18 (1990); 7 (1989); 7 (1988); 6 (1987). **** The average number of admissions of sentenced persons for violent crimes for previous years: 7 (1990); 6 (1989); 19 (1988); and 7 (1987). ***** The average number of admissions of sentenced persons for property crimes for previous years: 48 (1990); 29 (1989); 39 (1988); and 17 (1987). ****** The average number of admissions of sentenced persons for other crimes for previous years: 37 (1990); 28 (1989); 15 (1988); and 10 (1987). 2. Administration. * Administration. Administration of the prison is entrusted to the Correctional Services Division of the Ministry of Home Affairs. * Number of prison guards. In 1991, there were 81 warders, 6 of whom were female. * Training and qualifications. No prior training is required for recruitment as prison warder. Good conduct and a school leaving certificate are the minimum qualifications. * Expenditure on prison system. The approved estimated budget for 1994 is of LM 590,000. An additional LM 250,000 is allocated for capital expenditures. 3. Prison Conditions. * Remissions. Credit for time served in pre-conviction detention is awarded in the case of imprisonment. In addition, a prisoner is entitled to a remission of four months per year for good behavior. There is no parole system. Presidential amnesties on special occasions are also granted. * Work/education. Inmates cannot be forced to work but they are encouraged to engage in any of the several working shops. These are not available to female inmates. Inmates are also encouraged to attend educational classes. * Amenities/privileges. Visits are permitted and medical assistance is provided by law. Educational and vocational programs are available on a limited basis. EXTRADITION AND TREATIES * Extradition. In large part, Malta abides by the reciprocal extradition treaties common to British Commonwealth countries, and on a case by case basis, participates in the Council of Europe multilateral treaties. * Exchange and transfer of prisoners. Malta has ratified the European Convention on Transfer of Prisoners. Therefore, prisoners can be exchanged or transferred to those European Countries which have similarly ratified the Convention. There are no formal arrangements with other countries though arrangements for the transfer or exchange of prisoners has been reached in the past with Italy, Belgium, Sweden and Libya. * Specified conditions. Extradition is regulated by the Extradition Act of 1978. SOURCES Agius, Carmel A., Criminal Justice Policies, Malta, 1990. Agius, Carmel A. and Grosselfinger, N., The Judiciary and Politics in Malta, 1992. Agius, Carmel A., Honorable Justice, Law Courts, Malta. Personal Interview: March 1994. Phone: 225785. Annual Report of the Police, 1993, unpublished. Aquilina, K. and Micallef, P., A Profile of the Maltese Courts of Justice. Department of Information, Valletta, Malta 1992. Armed Forces Act, Chapter 220 of the Laws of Malta. Code of Police Laws, Chapter 10 of the Laws of Malta. Commissioner of Police, Police Headquarters, Malta. Personal Interview: March 1994. Phone: 224002. Courts of Justice Report for 1992/1993 - unpublished. Criminal Code, Chapter 9 of the Laws of Malta. Dangerous Drugs Ordinance of 1939, Chapter 101 of the Laws of Malta. Estimates 1994, Ministry of Finance, Malta. European Convention Act, 1987. Mifsud, Paul, Ministry of Home Affairs, Malta. Personal Interview: March 1994. Phone: 485100. Prisons Report for 1991, Department of Information, 1992. Probation of Offenders Act of 1957, Chapter 152 of the Laws of Malta. Rowland, James. Consultant, Prisons, Malta. Personal Interview: March 1994. Personal Contact. Phone: 695026. Scicluna, D. Juvenile Justice and the Protection of the Young, 1990. Nancy Grosselfinger Professor Criminology Programme Institute for Forensic Studies University of Malta Block A, Room 208 University of Malta Msida, Malta