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The Criminal Code (Amendment) Act, 2005 (Bill No. 40)

A BILL

entitled

AN ACT to amend the Criminal Code, Cap. 9

BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled, and by the authority of the same as follows>
1. (1) The short title of this Act is the Criminal Code
(Amendment) Act, 2005.
(2) The provisions of this Act shall be read and construed as one with the Criminal Code, hereinafter referred to as “the principal law”, and they shall come into force on such date as the Minister responsible for justice may by notice in the Gazette appoint, and different dates may be so appointed for different provisions and for different purposes thereof.
2. Immediately after Sub-title IV of Title IX of Part II of Book
First of the principal law there shall be inserted the following>
“Sub-title V
OF ACTS OF TERRORISM, FUNDING OF TERRORISM AND ANCILLARY OFFENCES

Short title.

Insertion of new sub-title to the principal law.

Acts of terrorism.

328 A. (1) For the purposes of this sub-title, “act of terrorism” means any act listed in sub-article (2), committed wilfully, which may seriously damage a country or an international organization where committed with the aim of>
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(a) seriously intimidating a population, or
(b) unduly compelling a Government or international organization to perform or abstain from performing any act, or
(c) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organization.
(2) The acts to which reference is made in sub-article
(2) are the following>
(a) taking away of the life or liberty of a person< (b) endangering the life of a person by bodily
harm<
(c) bodily harm<
(d) causing extensive destruction to a state or government facility, a public transportation system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property likely to endanger the life or to cause serious injury to the property of any other person or to result in serious economic loss<
(e) seizure of aircraft, ships or other means of public or goods transport<
(f) manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear, biological or chemical weapons<
(g) research into or development of biological and chemical weapons<
(h) release of dangerous substances, or causing fires, floods or explosions endangering the life of any person<
(i) interfering with or disrupting the supply of water, power or any other fundamental natural resource endangering the life of any person<

Terrorist groups.

Offences linked

to terrorist acts.

(j) threatening to commit any of the acts in paragraphs (a) to (h) above>
Provided that in this sub-article “state or government facility”, “infrastructure facility” and “public transportation system” shall have the same meaning assigned to them in sub-article (4) of article 314A.
(3) Whosoever commits an act of terrorism shall be guilty of an offence and shall be liable on conviction to the punishment of imprisonment from five years to life.
328 B. (1) For the purpose of this sub-title “terrorist group” means a structured group of more than two persons, established over a period of time and acting in concert to commit terrorist offences.
(2) In sub-article (1) “structured group” means a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure.
(3) Whosoever promotes, constitutes, organises, directs, finances, supplies information or materials to, a terrorist group knowing that such participation or involvement will contribute towards the criminal activities of the terrorist group shall be liable –
(a) where the said participation or involvement consists in directing the terrorist group, to the punishment of imprisonment not exceeding fifteen years>
Provided that where the activity of the terrorist group consists only of the acts mentioned in paragraph (j) of article 328A(2) the punishment shall be that of imprisonment for a period not exceeding eight years<
(b) in any other case, to the punishment of imprisonment not exceeding eight years.
328 C. (1) Whosoever, with the intention of committing any of the acts listed in paragraphs (a) to (i) of article 328A(2) or in article 328B -
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Inciting, aiding or abetting.

Terrorist property.

(a) commits an offence of theft aggravated as provided in article 261< or
(b) commits the offence in article 113 or 250< or
(c) commits an offence of forgery or the offence in article 188,
shall be liable to the same punishment laid down in article
328A (3).
328 D. Whosoever incites, aids or abets any offence under the aforegoing articles of this sub-title shall be guilty of an offence and shall be liable on conviction to the punishment laid down for the offence incited, aided or abetted decreased by one to three degrees.
328 E. (1) In this sub-title, “terrorist property”
means –
(a) money or other property which is likely to be used for the purposes of terrorism, including any resources of a terrorist group,
(b) proceeds of the commission of acts of terrorism, and
(c) proceeds of acts carried out for the purposes of terrorism.
(2) In sub-article (1) –
(a) a reference to proceeds of an act includes a reference to any property which wholly or partly, and directly or indirectly, represents the proceeds of the act (including payments or other rewards in connection with its commission), and
(b) the reference to a group’s resources includes a reference to any money or other property which is applied or made available, or is to be applied or made available, for use by the group.

Funding of terrorism.

Use and possession.

328 F. (1) Whosoever receives, provides or invites another person to provide, money or other property intending it to be used, or which he has reasonable cause to suspect that it may be used, for the purposes of terrorism shall, on conviction, be liable to the punishment of imprisonment for a term not exceeding four years or to a fine (multa) not exceeding five thousand liri or to both such fine and imprisonment.
(2) In this article a reference to the provision of money or other property is a reference to its being given, lent or otherwise made available, whether for consideration or not.
328 G. (1) Whosoever uses money or other property for the purposes of terrorism shall, on conviction, be liable to the punishment of imprisonment not exceeding twelve years.
(2) Whosoever is in possession of money or other property intending it to be used, or having reasonable cause to suspect that it may be used, for the purposes of terrorism shall, on conviction, be liable to the punishment laid down in sub-article (1) of article 328F.
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Funding arrangements.

328 H. Whosoever -
(a) enters into or becomes concerned in an arrangement as a result of which money or other property is made available or is to be made available to another, and
(b) knows or has reasonable cause to suspect that the money or other property will or may be used for the purposes of terrorism,
shall on conviction be liable to the punishment laid down in sub-article (1) of article 328F.

Facilitating retention

or control of terrorist property.

328 I. (1) Whosoever enters into or becomes concerned in an arrangement which facilitates the retention or control by or on behalf of another person of terrorist property -
(a) by concealment,
(b) by removal from the jurisdiction,
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Corporate criminal liability.

Other penalites.

Jurisdiction.

(c) by transfer to nominees, or
(d) in any other way,
shall, on conviction, be liable to the punishment laid down in sub-article (1) of article 328F.
(2) It is a defence for a person charged with an offence under sub-article (1) to prove that he did not know and had no reasonable cause to suspect that the arrangement related to terrorist property.
328 J. (1) The provisions of article 121D shall apply where a person is found guilty of an offence under this sub- title sohowever that the body corporate shall for such offence be liable to the punishment of a fine (multa) of not less than
5,000 liri and not more than 1,000,000 liri.
(2) The body corporate shall also be held liable for an offence under this sub-title where the lack of supervision or control by a person referred to in article 121D has made possible the commission of the offence for the benefit of the body corporate, which shall upon conviction be liable to the punishment laid down in sub-article (1).
328 K. Without prejudice to any other punishment to which the offence may be liable under this Code or any other law, where the offender is a body corporate liable to punishment under the provisions of article 328J the Court may, at the request of the prosecution, order –
(a) the suspension or cancellation of any licence, permit or other authority to engage in any trade, business or other commercial activity<
(b) the temporary or permanent closure of any establishment which may have been used for the commission of the offence<
(c) the compulsory winding up of the body corporate.
328 L. Without prejudice to the provisions of article
5, the courts in Malta shall also have jurisdiction over the offences laid down in this sub-title where –
(a) the offence is committed even if only in part in the territory of Malta or on the sea in any place within the territorial jurisdiction of Malta<
(b) the offender is a Maltese national or permanent resident in Malta<
(c) the offender is a person suspected or convicted of an offence laid down in this sub-title and whose surrender or extradition to another country for such an offence is refused by Malta even if there is no provision according to the laws of Malta other than the present provision in virtue of which the criminal action may be prosecuted in Malta against that person<
(d) the offence is committed for the benefit of a legal person established in Malta<
(e) the offence is an offence under article 328B or an offence under article 328D which involves a terrorist group even if the terrorist group is based or pursues its criminal activities outside Malta<
(f) the offence is committed against the institutions or people of Malta or against an institution of the European Union or a body set up in accordance with the Treaties and based in Malta>
Provided that for the purposes of this paragraph> “the European Union” shall have the same
meaning assigned to it by article 2(1) of the
European Union Act<
“the Treaties” means the Treaty establishing the European Community done at Rome on the 25th March, 1957 and the Treaty on European Union done at Maastricht on the 7th February, 1992, and the Protocols annexed thereto.”.
3. Article 337A of the principal law shall be amended as follows> (a) the present provision thereof shall be renumbered as sub-
article (1)<
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Amendment of article 337A of the principal law.

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Addition of

new article 337B

to the principal law.

(b) immediately after the words “attempt to leave” there shall be inserted the words “or to transit across or to attempt to transit across”< and
(c) for the words “three degrees.” in the proviso thereto, there shall be substituted the words “three degrees>” and immediately thereafter there shall be added the following new proviso>
“Provided also that where the offence is committed- (a) as an activity of a criminal organization< or
(b) while endangering the lives of the persons aided, assisted, counseled, procured or the object of the conspiracy as aforesaid,
the punishment shall always be increased by two degrees even when the first proviso does not apply.”<
(d) immediately after sub-article (1) as renumbered there shall be inserted the following new sub-article>
“(2) Without prejudice to the provisions of article 5, the courts in Malta shall also have jurisdiction over the offence in this article where –
(a) the offence is committed even if only in part in the territory of Malta or on the sea in any place within the territorial jurisdiction of Malta<
(b) the offender is a Maltese national or permanent resident in Malta<
(c) the offence is committed for the benefit of a legal person established in Malta.”.
4. Immediately after article 337A of the principal law there shall be inserted the following new article>

“Corporate criminal liability.

337B. The provisions of articles 328J and 328K shall apply mutatis mutandis to any offence under Sub-title IV of this title and to the offence in article 337A.”.

Amendment to the Prevention of Money Laundering Act, Cap. 373.

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5. The Prevention of Money Laundering Act shall be amended as follows and shall be read and construed accordingly>
(a) in article 12 thereof>
(i) in sub-article (1), immediately after the words “money laundering” there shall be inserted the words “and funding of terrorism”< and
(ii) in sub-article (2), immediately after the words “money laundering” there shall be inserted the words “or funding of terrorism”<
(b) in article 14 thereof, in the definition “subject person”, immediately after the words “money laundering” there shall be inserted the words “or funding of terrorism”<
(c) in sub-article (1) of article 16 thereof>
(i) in the opening paragraph and in paragraph (j), immediately after the words “money laundering” wherever they occur there shall be inserted the words “and funding of terrorism”< and
(ii) other than in the opening paragraph and in paragraph (j), immediately after the words “money laundering” wherever they occur there shall be inserted the words “or funding of terrorism”<
(d) in sub-article (1) of article 28 thereof, immediately after the words “money laundering” there shall be inserted the words “or funding of terrorism”<
(e) in article 29 thereof, immediately after the words “money laundering” wherever they occur there shall be inserted the words “or funding of terrorism”<
(f) in sub-article (1) of article 30, immediately after the words “money laundering” weherever they occur there shall be inserted the words “or funding of terrorism”<
(g) in article 31 thereof, immediately after the words “money laundering” wherever they occur there shall be inserted the words “or funding of terrorism”<
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(h) in article 32 thereof, immediately after the words “money laundering” there shall be inserted the words “or funding of terrorism”<
(i) sub-article (4) of article 34 thereof shall be amended as follows>
(i) in paragraph (c), for the words “of this Act>” there shall be substituted the words “of this Act< or” and immediately thereafter there shall be inserted the following new paragraph>
“(d) any offence of funding of terrorism>”
(ii) in the proviso, immediately after the words “from the said offence” there shall be inserted the words “or of funds, assets or other property used for the purpose of funding of terrorism”.
Objects and Reasons
The object of this Bill is mainly to make provision for offences of terrorism and funding of terrorism and to make ancillary amendments for the prevention of such funding.