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. For instance:

• Admittance into the proceedings as an 'injured party' — Laws of Malta, Chapter 9, Criminal Code, article 410, paragraph 5

• Instituting criminal proceedings — Laws of Malta, Chapter 9, Criminal Code, articles 221, 226, 255, 293, 298B, 325, 328, 332, 339, 355Y, 373, and 374, amongst others

• Terminating criminal proceedings — Laws of Malta, Chapter 9, Criminal Code, article 545, paragraph 1

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

• Protection under ‘Witness Protection Programmes’ — Laws of Malta, Act XIII, 4, 2000: Chapter 164, Police Act, paragraphs 75-90

• Evidence by contemporaneous video conferencing — Laws of Malta, Chapter 164, Police Act, paragraph 90

• Compensation in certain specific cases — Laws of Malta, Act XXI, 2002, 5 and 6: Chapter 319, European Convention Act, Schedule 1, Article 5, paragraph 5; and Schedule 3, Article 4A, paragraph 22

• Present at court proceedings — Laws of Malta, Act III, 2002, 88: Chapter 9, Criminal Code, paragraphs 410 (1), (4) and (5)

• Engage legal assistance — Laws of Malta, Act III, 2002, 88: Chapter 9, Criminal Code, paragraphs (1) and (3)

• Submit opinion on sentence — Laws of Malta, Act III, 2002, 117: Chapter 9, Criminal Code, paragraph 500A

• Receive payment of sustained damages in some cases — Laws of Malta, Chapter 446, Probation Act, article 24, paragraph 1

• Protection to victims under the age of 18 — Laws of Malta, Chapter 462, Commissioner for Children Act, 2003, articles 9f, 10b, and 17, paragraph 1

• Care and support in cases of domestic violence — Laws of Malta, Domestic Violence Act, 2005, Part III, article 9

 

Admittance into the proceedings [top]

Any person not served with a police notice, 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.

Instituting criminal proceedings [top]

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.

First, cases involving slight bodily harm. Such harm is legally called ‘slight’ because it is a sort of personal physical harm from which death shall not ensue as a result of the nature or the natural consequences of the harm. In such a case, the criminal proceedings are instituted on the complaint of the victim provided that the victim is not a witness, a referee who shall have given evidence or an opinion in any suit, or a child under nine years of age.

Second, cases involving defamation. No proceedings shall be instituted for defamation except on the complaint of the party aggrieved provided that where the party aggrieved dies before having made the complaint, or where the offence is committed against the memory of a deceased person, it shall be lawful for the husband or wife, the ascendants, descendants, brothers and sisters, and for the immediate heirs, to make the complaint.

Third, certain cases of fraud. No criminal proceedings shall be instituted except on the complaint of the injured party in cases when someone misapplies, converting to his or her own benefit or to the benefit of any other person, anything which has been entrusted or delivered to him or her under a title which implies an obligation to return such thing or to make use thereof for a specific purpose.

Fourth, cases of copyright. No criminal proceedings shall likewise be instituted except on the complaint of the injured party in cases when someone, for gain, or by way of trade, prints, manufactures, duplicates or otherwise reproduces or copies, or sells, distributes or otherwise offers for sale or distribution, any article or other thing in violation of the rights of copyright enjoyed by any other person and protected by or under Maltese law.

Fifth, cases of spoil or damage. No criminal proceedings shall be instituted except on the complaint of the injured party in cases when someone willfully commits any spoil, damage or injury to or upon any movable or immovable property belonging to any other person, provided, however, that the amount of the damage does not exceed fifty Maltese liri. This provision applies only if the crime was not done by reason of an unjust provocation, and the damage was not caused to public property.

Sixth, cases of harm through carelessness. No criminal proceedings shall likewise be instituted except on the complaint of the injured party in cases when someone, through imprudence, negligence or unskilfulness in his trade or profession, or through non-observance of any regulation, causes any fire or any damage, spoil or injury to another person’s property or person, provided that no person was killed as a consequence, no grievous bodily harm ensued, and the damage was not caused to public property.

Seventh, cases of insults. Again, No criminal proceedings shall likewise be instituted except on the complaint of the injured party in cases when someone insults, annoys or hurts another person or others; does so after being provoked, but carries his or her insult beyond the limit warranted by the provocation; pushes against any person in the street with the object of hurting or insulting such person; and/or even though without the intent of committing another offence, enters into the dwelling-house of another person, against the express warning of such person, or without his or her knowledge, or under false pretences or by any other deceit.

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 [top]

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.

‘Witness Protection Programmes’ [top]

All victims of crime may benefit from such programmes. A request by a person to be considered a protected witness may be made to the Attorney General, who shall decide the request. The Attorney General may not be brought as a witness against the person requesting to be admitted to the programme or to prove that he made any such request.

The ‘Witness Protection Programme’ may provide for such protection to the life and property of a witness admitted to the programme and to that of members of his family as the Commissioner of Police may deem appropriate, and may include provision for the payment of a subsistence allowance in particular cases.

The Minister responsible for the Police may enter into agreements with foreign governments providing for assistance, on the basis of reciprocity, in the implementation of ‘Witness Protection Programmes’. For the purpose of enhancing the protection of witnesses such agreements may provide for the possibility of transferring to another country a protected witness or receiving from another country a witness admitted to a ‘Witness Protection Programme’ in that country.

The Attorney General may at any time, either on his own initiative or on an application by the Commissioner of Police, revoke a person’s protected witness status where it results that that person is not abiding by the conditions of the ‘Witness Protection Programme’ or that his evidence or version of the facts, or any circumstances indicated by him as corroborating evidence, are manifestly false.

The protected witness’ status may also be revoked where the person enjoying that status commits, during the period of the ‘Witness Protection Programme’, or is reasonably suspected of having committed during that period, any voluntary crime punishable with imprisonment for more than three years.

Contemporaneous video conferencing [top]

Any minor, any victim of any crime against the peace and honour of families, and against morals, and any other witness who in the opinion of the court needs special treatment or protection, may be allowed to give evidence viva voce during the trial by contemporaneous television transmission.

The Minister, in concurrence with the Minister for Justice, may make regulations to lay down anything that needs to be prescribed for the setting up of a contemporaneous television transmission during a trial, and to lay down such rules of procedure and of evidence as may be necessary for such purpose as well as to secure greater protection of the personal safety, sense of modesty, psychological stability of such witnesses as may, on account of special circumstances, require such protection.

Where the court considers it necessary for the protection of any person admitted to the ‘Witness Protection Programme’, it may allow such person to give evidence viva voce during the trial while being screened from the accused or by contemporaneous television transmission.

Compensation [top]

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.

See also pending legislation

Presence at court proceedings [top]

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 [top]

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 [top]

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 [top]

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.

Protection to victims under the age of 18 [top]

Amongst the functions, the Commissioner for Children seeks to ensure that the rights and interests of children are properly taken into account by government departments, local authorities, other public bodies and voluntary and public organisations when decisions on policies affecting children are taken;

One of the principles with which the Commissioner is guided there is that which states that all children are to be treated with dignity, respect and fairness;

If it appears to the Commissioner that a particular person or body is not complying with the provisions of the United Nations Convention on the Rights of the Child as ratified by Malta, then the Commissioner may make recommendations in the form of a compliance notice, which shall state the Commissioner’s opinion as to the way in which the provisions of the Convention are not being complied with and what action should be taken to comply.

See also pending legislation

Care and support in cases of domestic violence [top]

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.

PENDING LEGISLATION [top]

In a White Paper published by the Ministry for Justice & Home Affiars in January 2005—called Towards a Better and More Expeditious Administration of Justice—government made a number of proposals for new legal amendaments with regard to victims of crime. It must be borne in mind that these proposals were presented for discussion, and may not eventually be implimented. The proposals are the following:

• The names of victims of offences and of witnesses be prohibited from publication even after a final judgement is given (Criminal Law Field, n.2).

• The compensation to victims of crime payable by the state by only paid when the person found guilty cannot pay, and in that case the state would be subrogated into the rights of the victim (Criminal Law Field, n.7).

• Victims who are minors involved in criminal cases give evidence only once, and the examination and cross-examination of evidence be mde during that day; this evidence be recorded on video tape or other technological device, and then shown to the jurors without the need for the witness to be called again to give evidence (Criminal Law Field, n.8).

• Fees payable to witnesses (which, according to the Witnesses (Fees) Ordinance [Laws of Malta, Chapter 108] of 1940 are ridiculously low) be increased (Civil Law Field, n.13).