In the first evaluation of Malta’s implementation of the European Union’s Framework Decision on combating terrorism, Malta was found to have implemented eight of the framework’s 10 articles dealing with the criminalisation and punishment of terrorist offences.

But, on the other hand, Malta neglected to transpose or provide a legal basis for articles dealing with people cooperating with the judicial process in the fight against international organised crime, and providing protection and assistance for victims of terrorist acts.

In particular, Article Six of the EU’s counter terrorism framework provides for the establishment of mitigating circumstances to reduce penalties imposed on terrorists who cooperate with judicial authorities in the fight against organised crime.

The adoption of legislation transposing the directive, however, is optional and as such Malta was not required to implement the measure. Along with Malta, The Netherlands and Czech Republic are the only EU States that have not provided for the transposition of the article.

The framework’s Article 10(2), meanwhile, provides for assistance and protection for the families of victims of terrorism, where Malta has not provided the European Commission with any information on adopting the article’s provisions. Hungary, Luxembourg, Latvia, Poland, and Slovakia were similarly non-compliant with the measure, which was not of a voluntary nature.

Despite the two shortcomings, Malta received good marks overall in its first assessment, having transposed eight of the 10 articles contained in the framework.

The EC’s report commends Malta for its system of penalties for legal persons, under Article Eight, through two specific transposing directives. Malta, the analysis states, has created an “exemplary system” of penalties.

The penalty system for individuals or companies guilty of terrorist offences with minimum fines of Lm5,000 (EUR11,647) to a maximum of Lm1 million (EUR2,329,373), while also reserving the additional option of imposing the suspension or cancellation of any licence, permit or authority to engage in commercial activity, the temporary or permanent closure of any establishment used for the commission of the offence and the compulsory winding-up of the company if applicable.

Malta, the Commission said, had opted for a nearly literal transposition of Article One in the Maltese criminal code dealing with the definition of terrorist offences while Article Two, dealing with the offences related to a terrorist group, reproduces the definition of a terrorist group.

But, the Commission points out, the Maltese provision retains various ways of participating in a terrorist group without making it punishable to participate in a terrorist group in general.

The Maltese legislation does not refer to participation in general but enumerates several ways of participating in the activities of a terrorist group and as such, the EC observes, “… the enumeration of types of behaviour by the Maltese provision seems broad enough, it cannot be ruled out that ‘atypical’ ways of participation might not be covered”.

Through a specific clause, the Maltese Criminal Code meets the requirements of Article Four on inciting, aiding, or abetting and attempting terrorist offences by criminalising the offences.

On Article Five dealing with penalties, the EC singled Malta out for a special mention since it went beyond the minimum one-year custodial sentence for involvement in terrorist offences by imposing a five-year minimum sentence.

Moreover, Malta has also introduced rules allowing for the imposition of life sentences for offences not limited to certain terrorist acts but which rather could apply to all such offences.

Malta has also introduced into the Criminal Code custodial sentences of up to 30 years for the direction of a terrorist group and an eight-year maximum for participation.

Malta was also lauded for its implementation of Article Nine on jurisdiction and prosecution, which Malta transposed through a specific provision. Only Malta, in fact, sent an explicit provision clarifying offences related to terrorist groups stipulating that it should not make a difference where the terrorist group is based or pursues its criminal activities. Similarly, only Malta provided another explicit provision concerning offences committed for the benefit of a legal person established in its territory.