Punishments under Maltese Criminal Code
Criminal law establishes offences and their respective punishment, all with the view of facilitating an effective and just judicial framework. This is in line with the principles of nullum crimen sine lege1 and nulla poeana sine lege2. The established punishments under the Maltese Criminal Code and associated legislation thereto, rarely impose a determinate punishment but rather impose a variable sanction. This variability relates to both imprisonment and fines.
There are 3 leading theories providing different perspectives and reasons why the judicial system punishes offenders:
- The Retributive Theory – This is a theory based on the notion of lex talionis3. This notion embodies the eye-for-an-eye principle and hence, this theory opines that an offender is to be punished in the same manner of the offence.
- The Utilitarian Theory – This theory gives punishment a role beyond it being a means of punishing the offender. This is because the judicial system is to use the punishment to daunt other citizens from committing that same offence. It does not necessarily mean that the punishment will be cruel or unjust on the offender, however, the courts would employ an unrelenting approach. This theory is one which aids crime-rising societies.
- The Reformative Theory – Punishment is seen to be as a means of aiding the offender to reform and combat recidivism. This is the theory which the Courts of Malta employ. This theory aims to award a punishment which serves a purpose to the offender whilst providing opportunities for easier re-integration into society in cases of imprisonment.
The law distinguishes between crimes and contraventions and the punishments applicable thereto. The difference between the two is primarily the severity of the crime and punishment.
Crimes shall be subject to the following punishments:
- Imprisonment;
- Solitary confinement;
- Interdiction; and
- Fine.
Contraventions shall, unless stated otherwise in any special law, be subject to the following punishments:
- Detention;
- Fine; and
- Reprimand or admonition.
Fines are punishment for both crimes and contraventions with the difference being that one is related to a fine (multa) and a fine (ammenda) respectively. A fine (multa), if not stated otherwise, has a maximum fine (multa) of €1,164.69 and a minimum of €23.29. If any law sets a maximum fine lower than €23.29, the maximum will instead be €23.29, and the minimum will be €11.65.
If a fine is not paid within the required period, it will be converted into imprisonment at the rate of one day for every €35 or part of that amount. A fine (ammenda) shall be between €6.99 and €58.23.
Imprisonment shall be the deprivation of liberty based on the determination of guilt of a person and which is dependant on the severity and nature of the crime. Imprisonment shall be at the Corradino Correctional Facility and persons who have satisfied the requisites of insanity are to initially be kept in custody at Mount Carmel Hospital with the possibility of transfer for multiple reasons.
There are 15 degrees of punishments of imprisonment, with the least being one month and the maximum for one offence being forty years. Provisions of the law provide the degree of punishment and subsequently determine the number of degrees to be escalated or de-escalated based on specific provided circumstances.
Solitary confinement is a punishment which is a step beyond imprisonment, as it awards the person a period not exceeding 10 days of non-access imprisonment. The only persons who shall have access to the person shall be correctional facility employees or persons with special permission. This punishment may only be awarded to a person with 2-month intervals.
Nonetheless, infringement of prison regulation within the 2-month interval shall award solitary confinement without the lapse of the 2 months. Solitary confinement awarded through express provision of law on offences shall not be interpreted to be more than 12 terms of solitary confinement. However, a medical officer shall be able to certify that a person is no longer medically fit to undergo this punishment.
Interdiction is a punishment that restricts or prohibits an individual from performing certain actions. There are two types of interdiction:
- General interdiction: This relates to the notion of a person being disqualified from any public office or employment; and
- Special interdiction: This relates to the notion of a person being disqualified from a specific office, employment, or profession, art, trade, or right according to the circumstances of the offence.
Detention is a punishment ordering a person to be detained in the prison or in the specific sector within the prison. Unless the court states otherwise, this punishment shall not exceed 2 months.
Reprimand or an Admonition shall be made in open court by a judge or magistrate who tried the offence.
Subsequent to the aforementioned punishments the Courts shall also be able to award a suspended sentence. A suspended sentence may be awarded by a court when it finds a person guilty with a sentence of imprisonment not exceeding 2 years. This punishment is still a sentence of conviction. A suspended sentence is a legal provision where, despite a guilty verdict and a sentence of imprisonment, the court chooses to delay the execution of the sentence under certain conditions.
While the offender is not immediately incarcerated, the criminal record remains, and forfeiture of any illicit gains from the crime still applies. If the offender commits another crime during the suspension period, they are treated as a recidivist, and the original sentence is combined with the new punishment.
Suspended sentences can impact careers, especially for individuals in warranted or regulated professions, as a criminal record may result in the loss of professional licenses. The only aspect suspended in this process is the execution of the prison sentence.
An operational period is set, and the court is to determine whether to employ a conditional or an unconditional discharge. During an operational period with a conditional discharge, the offender shall not breach any condition; failing to do so shall lead to imprisonment and the suspended sentence is to be charged. In practice, the Court rarely employs an unconditional discharge.
Minor infractions, such as speeding, may not result in prison time but still classify the person as a repeat offender. The court may also appoint a supervisory officer to monitor the offender's behaviour, and in cases involving stolen goods or monetary loss, restitution to the victim is mandatory within 6 months, failure of which results in imprisonment based on the unpaid amount.
The court may issue a probation order without sentencing the alleged offender whilst requiring the person to remain under supervision for a period specified by the court. Hence, the offender is convicted but is not given a sentence. Such period shall not be less than one year and not more than 3 years. A person shall not be allowed a probation order should the punishment be a fine or imprisonment exceeding 7 years.
A probation officer, under the direction of the court, has various duties to support and monitor individuals placed on probation. These include advising and assisting the probationer, visiting them and gathering reports from relevant professionals at regular intervals, and ensuring compliance with the conditions of the probation order. They are responsible for planning and overseeing the probationer's progress, promoting awareness of the harm caused by their offense, and reporting on their progress to the court at least every 6 months.
Additionally, probation officers help probationers in social and educational pursuits, assist with finding suitable employment, and maintain detailed records on each individual under their care. They also provide regular updates on the probationer's progress and follow the Director of Probation Services' instructions when a probationer violates the terms of their probation. Lastly, probation officers may be tasked with investigating the probationer's home and personal circumstances to assist the court in determining the most appropriate approach to their case.
In conclusion, criminal law, with its range of punishments, serves to balance justice, protect society, and offer opportunities for reform. The different penalties, whether imprisonment, fines, suspended sentences, or probation, ensure that each case is handled fairly and proportionately.
Footnotes
1. English translation: no crime without the law.
2. English translation: no penalty without law.
3. English Translation: the law of retaliation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.