I ASSENT Criminal Procedure and Evidence MUTUAL RECOGNITION OF FINANCIAL PENALTIES
REGULATIONS 2014

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2011-24 Subsidiary 2014/229

Subsidiary Legislation made under s. 697.


MUTUAL RECOGNITION OF FINANCIAL PENALTIES
REGULATIONS 2014

(LN. 2014/229)
Commencement 1.12.2014
Amending
enactments
Relevant current
provisions
Commencement
date



Transposing:
Framework Decision 2005/214/JHA
Council Framework Decision 2009/299/JHA

EU Legislation/International Agreements involved:
_______________________

ARRANGEMENT OF REGULATIONS.

Regulation
1. Title and commencement.
2. Interpretation.
3. Central authority.

PART II
RECOGNITION OF FINANCIAL PENALTIES:
OUTGOING REQUESTS

4. Outgoing requests.
5. Procedure on issue of certificate

PART III
Recognition of financial penalties: Requests received in Gibraltar.

6. Part III: Interpretation and general provisions.
7. Requests received in Gibraltar.
8. Procedure on receipt of certificate by competent authority.
9. Termination of enforcement.
Criminal Procedure and Evidence MUTUAL RECOGNITION OF FINANCIAL PENALTIES
REGULATIONS 2014

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2011-24 Subsidiary 2014/229

PART IV
Miscellaneous

10. Supply of information.
11. Costs.


SCHEDULE 1
Penalties Suitable for Enforcement in Gibraltar

SCHEDULE 2
Grounds for Refusal to Enforce Financial Penalties

SCHEDULE 3


Criminal Procedure and Evidence MUTUAL RECOGNITION OF FINANCIAL PENALTIES
REGULATIONS 2014

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In exercise of the powers conferred upon him by section 697 of the Criminal
Procedure and Evidence Act 2011, and for the purposes of transposing, the
Framework Decision of the Council of the European Union made on 24
February 2005 on the application of the principle of mutual recognition to
financial penalties (2005/214/JHA), the Minister has made the following
Regulations–

Title and commencement.

1. These regulations may be cited as the Mutual Recognition of Financial
Penalties Regulations, 2014 and shall come into operation on 1 December
2014.

Interpretation.

2.(1) In these regulations–

“central authority”, in relation to a Member State, means an authority
designated by the State as a central authority for the purposes of the
Framework Decision on financial penalties;

“Central Authority in Gibraltar” shall be construed in accordance with
regulation 3;

“competent authority”, in relation to a Member State, means an authority
designated by the State as a competent authority for the purposes of
that Decision;

“executing State” means the State to which a decision has been
transmitted for the purpose of enforcement;

“the Framework Decision on financial penalties” means the Framework
Decision of the Council of the European Union made on 24
February 2005 on the application of the principle of mutual
recognition to financial penalties (2005/214/JHA) as amended from
time to time;

“issuing State” means the State in which a decision within the meaning
of the Framework Decision on financial penalties was delivered;

“Member State” means a Member State of the European Union to which
the Framework Decision on financial penalties applies; and

“Minister” means the Minister with responsibility for Justice.

Criminal Procedure and Evidence MUTUAL RECOGNITION OF FINANCIAL PENALTIES
REGULATIONS 2014

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(2) References in these regulations to a certificate requesting
enforcement under the Framework Decision on financial penalties are
references to such a certificate as is provided for by article 4 of that
Decision.

Central authority.

3. The Central Authority in Gibraltar for the purposes of these regulations
shall be the Chief Secretary or such other person as the Minister may
appoint by notice in published the Gazette.

PART II
RECOGNITION OF FINANCIAL PENALTIES:
OUTGOING REQUESTS

Outgoing requests.

4.(1) A designated officer may issue a certificate requesting enforcement
under the Framework Decision on financial penalties where–

(a) a person is required to pay a financial penalty,

(b) the penalty is not paid in full within the time allowed for
payment,

(c) there is no appeal outstanding in relation to the penalty, and

(d) it appears to the designated officer that the person is normally
resident in, or has property or income in, a Member State.

(2) For the purposes of subregulation (1)(c), there is no appeal
outstanding in relation to a financial penalty if–

(a) no appeal has been brought in relation to the imposition of the
financial penalty within the time allowed for making such an
appeal, or

(b) such an appeal has been brought but the proceedings on appeal
have been concluded.

(3) Where the person required to pay the financial penalty is a body
corporate, subregulation (1)(d) applies as if the reference to the person being
normally resident in a Member State were a reference to the person having
its registered office in a Member State.

(4) In this regulation “financial penalty” means–
Criminal Procedure and Evidence MUTUAL RECOGNITION OF FINANCIAL PENALTIES
REGULATIONS 2014

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(a) a fine imposed by a court in Gibraltar on a person's conviction
of an offence;

(b) any sum payable under a compensation order (as defined in
section 2 of the Criminal Procedure and Evidence Act 2011) in
circumstances made in accordance with article 1(b)(ii) of the
Framework Decision on Financial Penalties;

(c) any sum payable under an order for costs made under Part 24
of the Criminal Procedure and Evidence Act 2011;

(d) any sum payable by virtue of section 577 of the Criminal
Procedure and Evidence Act 2011 (orders requiring parents to
pay fines etc);

(e) any other financial penalty, within the meaning of the
Framework Decision on financial penalties, specified in an
order made by the Minister.

(5) For the purposes of this regulation the following are designated
officers–

(a) the Registrar of the Supreme Court;

(b) the Clerk to the Justices;

(c) such other person designated by the Minister for the purposes
of this regulation.

(6) Designated officers are, in accordance with the Framework Decision
on financial penalties, competent authorities for the purposes of issuing a
certificate requesting enforcement under the Framework Decision and for
the purposes of regulation 5.

Procedure on issue of certificate

5.(1) This regulation applies where a designated officer has issued a
certificate under regulation 4(1) and given the certificate and the document
mentioned in subregulation (3)(b) to the Central Authority in Gibraltar.

(2) The Central Authority in Gibraltar must transmit the documents
mentioned in subregulation (3) to the central authority or competent
authority of the Member State in which the person required to pay the
penalty appears to be normally resident or (as the case may be) to have
Criminal Procedure and Evidence MUTUAL RECOGNITION OF FINANCIAL PENALTIES
REGULATIONS 2014

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2011-24 Subsidiary 2014/229
property or income in accordance with article 4.3 of the Framework
Decision on financial penalties.

(3) The documents are–

(a) the certificate, signed by the designated officer and certified by
him as accurate;

(b) a certified copy of the decision requiring payment of the
financial penalty.

(4) Subject to subregulations (5) and (6), where a certified copy of the
decision is given to the central authority or competent authority of a
Member State in accordance with subregulation (2)–

(a) no further steps to enforce the decision may be taken in
Gibraltar;

(b) the decision may not be transmitted to another Member State.

(5) This subregulation applies where the Central Authority in Gibraltar,
further to an application by a designated person or of its own volition, has
informed the relevant central authority or competent authority of the
Member State to which it has transmitted that a particular request for
enforcement, sent from Gibraltar in accordance with the Framework
Decision on financial penalties, is withdrawn or has ceased to be
enforceable.

(6) A competent authority in Gibraltar may accept a voluntary payment
from a person required to pay a financial penalty in respect of which a
request for enforcement has been transmitted to a central authority or
competent authority of a Member State in satisfaction or part satisfaction of
such financial penalty. The competent authority shall without delay inform
the Central Authority in Gibraltar of any voluntary payment received in
accordance with this subregulation.

(7) Where the person required to pay the financial penalty is a body
corporate, subregulation (2) applies as if the reference to the Member State
in which the person appears to be normally resident were a reference to the
Member State in which the person appears to have its registered office.

PART III
Recognition of financial penalties: Requests received in Gibraltar.

Part III: Interpretation and general provisions.

Criminal Procedure and Evidence MUTUAL RECOGNITION OF FINANCIAL PENALTIES
REGULATIONS 2014

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6.(1) In this Part and Schedules 1 and 2–

“decision” has the meaning given by article 1 of the Framework Decision
on financial penalties (except in regulations 8(4) and (6));

“financial penalty” has the meaning given by that by article 1 of the
Framework Decision on financial penalties.

(2) Schedule 1 specifies when a financial penalty is suitable for
enforcement in Gibraltar for the purposes of regulation 7(1).

(3) Schedule 2 specifies the grounds for refusal for the purposes of
regulations 7(3)(a) and 8(3).

(4) For the purposes of this Part the following are competent authorities
in Gibraltar–

(a) the Clerk to the Justices;

(b) such other person designated by the Minister for the purposes
of this Part.

Requests received in Gibraltar.

7.(1) This regulation applies where–

(a) the Central Authority in Gibraltar receives from a competent
authority or central authority of a Member State–

(i) a certificate requesting enforcement under the
Framework Decision on financial penalties, and

(ii) the decision, or a certified copy of the decision, requiring
payment of the financial penalty to which the certificate
relates, and

(b) the financial penalty is suitable for enforcement in Gibraltar in
accordance with regulation 6(2).

(2) If the certificate states that the person required to pay the financial
penalty is normally resident in Gibraltar, the Central Authority in Gibraltar
must give the documents mentioned in subregulation (1)(a) to a competent
authority in Gibraltar.

(3) Where the Central Authority in Gibraltar acts under subregulation
(2) he must also give the competent authority in Gibraltar a notice–
Criminal Procedure and Evidence MUTUAL RECOGNITION OF FINANCIAL PENALTIES
REGULATIONS 2014

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(a) stating whether the Central Authority in Gibraltar is of the
opinion that any of the grounds for refusal apply in accordance
with regulation 6(3), and

(b) giving reasons for that opinion.

Procedure on receipt of certificate by competent authority.

8.(1) This regulation applies where the Central Authority in Gibraltar gives
a competent authority in Gibraltar–

(a) a certificate requesting enforcement under the Framework
Decision on financial penalties,

(b) the decision, or a certified copy of the decision, requiring
payment of the financial penalty to which the certificate
relates, and

(c) a notice under regulation 7(3).

(2) The competent authority in Gibraltar must refer the matter to the
Magistrates' Court.

(3) The Magistrates' Court must decide whether it is satisfied that any of
the grounds for refusal apply (see regulation 6(3)).

(4) The competent authority in Gibraltar must inform the Central
Authority in Gibraltar of the decision of the Magistrates' court.

(5) Subregulation (6) applies unless the Magistrates' court is satisfied
that one or more of the grounds for refusal apply.

(6) Subject to subregulations (7) to (11), the provisions of the Criminal
Procedure and Evidence Act 2011 apply in relation to the financial penalty
as if it were a sum adjudged to be paid by a conviction of the Magistrates'
court on the date when the court made the decision mentioned in
subregulation (4).

(7) If–

(a) the certificate requesting enforcement under the Framework
Decision on financial penalties states,

(b) the sentenced person is able to furnish proof so as to satisfy the
Magistrates’ Court that a payment, totally or in part, in any
Criminal Procedure and Evidence MUTUAL RECOGNITION OF FINANCIAL PENALTIES
REGULATIONS 2014

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2011-24 Subsidiary 2014/229
State has been made in respect of the financial penalty to which
the decision relates, or

(c) the Magistrates’ Court is informed that the Central Authority in
Gibraltar has received information in accordance with article
15(3) of the Framework Decision on financial penalties that the
sentenced person has made a voluntary payment with respect to
the financial penalty,

the reference in subregulation (6) to the financial penalty is to be read as a
reference to such part of the penalty as remains unpaid.

(8) The Magistrates’ Court may, where the acts relating to a decision
were not carried out in the territory of the issuing State and fall under the
jurisdiction of the law of Gibraltar, reduce the financial penalty to be
enforced in the decision to the maximum amount provided for under the law
of Gibraltar for acts of that kind.

(9) The Magistrates’ Court may convert the financial penalty imposed
by the issuing State into pounds sterling at the prevailing rate of exchange
on the date when the financial penalty was imposed.

(10) The Magistrates’ Court may not impose an alternative sanction in
respect of a decision received under this section unless–

(a) the law of Gibraltar allows for alternative sanctions for the acts
that constitute the offence; and

(b) the issuing State provided for the application of alternate
sanctions in the certificate.

Provided that the Magistrates’ Court in determining the severity of the
alternative sanction may not exceed a maximum level stated in the
certificate transmitted with the decision by the issuing State.

(11) The application of sums recovered by the Magistrates’ Court in
relation to the enforcement of a decision under the Framework Decision on
financial penalties is subject to any agreement between the issuing State and
Gibraltar on such matters. Where there is no such agreement the sums must
be paid into the Consolidated Fund.

(12) Where the Magistrates’ Court is of the opinion that paragraph 1, 7,
9, or 10 of Schedule 2 applies to a request referred to it under subregulation
(2) it shall, before deciding not to recognise or execute the decision, consult
the relevant competent authority in the issuing state and request any
necessary further information from it.
Criminal Procedure and Evidence MUTUAL RECOGNITION OF FINANCIAL PENALTIES
REGULATIONS 2014

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Termination of enforcement.

9. The Magistrates’ Court shall terminate the enforcement of a request for
enforcement under the Framework Decision on financial penalties on being
informed by the Central Authority in Gibraltar–

(a) that the issuing State has stated–

(i) that such decision has ceased to be enforceable or is
withdrawn; or

(ii) that such decision is covered by an amnesty or pardon in
the issuing State, or

(b) that such decision is covered by an amnesty or pardon in
Gibraltar.

PART IV
Miscellaneous

Supply of information.

10.(1) The Magistrates’ Court shall without delay inform the competent
authority of the issuing state in writing–

(a) of any decision not to recognise and execute a decision
according to regulation 8(3) together with the reasons for the
decision;

(c) of the total or partial non-execution of the decision for the
reasons referred to in regulation 8(7), 8(8) or 9;

(d) of the execution of the decision as soon as the execution has
been completed;

(e) of the application of an alternative sanction, according to
regulation 8(10).

(2) Where–

(a) the Central Authority in Gibraltar has, for the purpose of
enforcement, transmitted a decision to an executing State; and

Criminal Procedure and Evidence MUTUAL RECOGNITION OF FINANCIAL PENALTIES
REGULATIONS 2014

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(b) the Central Authority in Gibraltar is informed that the person
required to pay the financial penalty has voluntarily paid a sum
in Gibraltar towards such financial penalty,

the Central Authority in Gibraltar shall, without delay, inform the competent
authority in the executing state of such payment.

(3) Where a body in Gibraltar receives a request for the enforcement of
a decision other than from the Central Authority in Gibraltar such body shall
without delay–

(a) transmit the decision to the Central Authority in Gibraltar; and

(b) inform the issuing State in writing of the transmission of the
decision to the Central Authority in Gibraltar.

Costs.

11.(1) Costs, including but not limited to any costs incurred by the Central
Authority in Gibraltar to obtain a translation of a request received in
Gibraltar in accordance with the Framework Decision on Financial
Penalties, shall not be claimed from the issuing State.

(2) The Magistrates’ Court must bear the costs of translating a decision
received from an issuing State into English and may suspend enforcement
of the decision until the translation is complete.






Criminal Procedure and Evidence MUTUAL RECOGNITION OF FINANCIAL PENALTIES
REGULATIONS 2014

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2011-24 Subsidiary 2014/229

SCHEDULE 1
Regulation 6(2)

Penalties Suitable for Enforcement in Gibraltar

Person residing in Gibraltar

1. The financial penalty is suitable for enforcement in Gibraltar if the
certificate states that the person required to pay the penalty is normally
resident in Gibraltar.

Person having property etc in Gibraltar

2. The financial penalty is suitable for enforcement in Gibraltar if–

(a) the certificate states that the person required to pay the penalty
has property or a source of income in Gibraltar, and

(b) the certificate does not state that the person is normally
resident in Gibraltar.

Interpretation

3. Where the person required to pay the financial penalty is a body
corporate, this Schedule applies as if the reference in paragraph 1 to the
person being normally resident in Gibraltar were a reference to the person
having its registered office in Gibraltar.



Criminal Procedure and Evidence MUTUAL RECOGNITION OF FINANCIAL PENALTIES
REGULATIONS 2014

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SCHEDULE 2
Regulation 6(3)

Grounds for Refusal to Enforce Financial Penalties

1. The certificate provided for in article 4 of the Framework Decision
on financial penalties is not produced is incomplete or manifestly does not
correspond to the decision.

2. A penalty (of any kind) has been imposed on the liable person in
respect of the conduct to which the certificate relates under the law of
Gibraltar (whether or not the penalty has been enforced).

3. A penalty (of any kind) has been imposed on the liable person in
respect of that conduct under the law of any Member State and the issuing
State, and that penalty has been enforced.

4. The decision was made in respect of conduct that is not specified in
Schedule 3 and which would not constitute an offence under the law of
Gibraltar if it occurred in Gibraltar.

5. The decision was made in respect of conduct–

(a) that occurred outside the territory of the issuing State, and

(b) would not constitute an offence under the law of the Gibraltar
if it occurred outside Gibraltar.

6. The decision was made in respect of conduct by a person who was
under the age of criminal responsibility as set by section 3 of the Crimes Act
2011 when the conduct took place.

7. The certificate provided for in article 4 of the Framework Decision
on financial penalties does not confirm that–

(a) if the proceedings in which the decision was made were
conducted in writing, the liable person was informed of the
right to contest the proceedings and of the time limits that
applied to the exercise of that right;

(b) if those proceedings provided for a hearing to take place and
the liable person did not attend, the liable person was informed
of the proceedings or indicated an intention not to contest
them.

Criminal Procedure and Evidence MUTUAL RECOGNITION OF FINANCIAL PENALTIES
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8. The financial penalty is for an amount less than 70 euros or the
equivalent to that amount.

9. According to the certificate provided for in article 4 of the
Framework Decision on financial penalties, the liable person did not appear
in person at the trial resulting in the decision, unless the certificate states
that the person, in accordance with further procedural requirements defined
in the national law of the issuing State–

(a) in due time either was summoned in person and thereby
informed of the scheduled date and place of the trial which
resulted in the decision, or by other means actually received
official information of the scheduled date and place of that trial
in such a manner that it was unequivocally established that he
or she was aware of the scheduled trial, and was informed that
a decision may be handed down if he or she does not appear for
the trial; or

(b) being aware of the scheduled trial, had given a mandate to a
legal counsellor, who was either appointed by the person
concerned or by the State, to defend him or her at the trial, and
was indeed defended by that counsellor at the trial; or

(c) after being served with the decision and being expressly
informed of the right to a retrial, or an appeal, in which he or
she has the right to participate and which allows the merits of
the case, including fresh evidence, to be re-examined, and
which may lead to the original decision being reversed:
expressly stated that he or she does not contest the decision, or
did not request a retrial or appeal within the applicable time
frame;

10. According to the certificate provided for in article 4 of the
Framework Decision on financial penalties, the person did not appear in
person, unless the certificate states that the person, having been expressly
informed about the proceedings and the possibility to appear in person in a
trial, expressly waived his or her right to an oral hearing and has expressly
indicated that he or she does not contest the case.


Criminal Procedure and Evidence MUTUAL RECOGNITION OF FINANCIAL PENALTIES
REGULATIONS 2014

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SCHEDULE 3
Schedule 2 Paragraph 4

 Participation in a criminal organisation.
 Terrorism.
 Trafficking in human beings.
 Sexual exploitation of children and child pornography.
 Illicit trafficking in narcotic drugs and psychotropic substances.
 Illicit trafficking in weapons, munitions and explosives.
 Corruption.
 Fraud, including that affecting the financial interests of the European Union within the meaning of the Convention of 26 July 1995 on the
protection of the European Union financial interests.
 Laundering of the proceeds of crime.
 Counterfeiting currency, including of the euro.
 Computer-related crime.
 Environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties.
 Facilitation of unauthorised entry and residence.
 Murder, grievous bodily injury.
 Illicit trade in human organs and tissue.
 Kidnapping, illegal restraint and hostage-taking.
 Racism and xenophobia.
 Organised or armed robbery.
 Illicit trafficking in cultural goods, including antiques and works of art.
 Swindling.
 Racketeering and extortion.
 Counterfeiting and piracy of products.
 Forgery of administrative documents and trafficking therein.
 Forgery of means of payment.
 Illicit trafficking in hormonal substances and other growth promoters.
 Illicit trafficking in nuclear or radioactive materials.
 Trafficking in stolen vehicles.
 Rape.
 Arson.
 Crimes within the jurisdiction of the International Criminal Court.
 Unlawful seizure of aircraft or ships.
 Sabotage.
 Conduct which infringes road traffic regulations, including breaches of regulations pertaining to driving hours and rest periods and
regulations on hazardous goods.
Criminal Procedure and Evidence MUTUAL RECOGNITION OF FINANCIAL PENALTIES
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 Smuggling of goods.
 Infringement of intellectual property rights.
 Threats and acts of violence against persons, including violence during sport events.
 Criminal damage.
 Theft.
 Offences created by the issuing State and serving the purpose of implementing obligations arising from instruments adopted under
the Treaty establishing the European Community or Title VI of the
Treaty on European Union.

Interpretation

In this Schedule–

(a) “conduct” includes any act or omission;

(b) “liable person” means the person required to pay the financial
penalty to which the certificate relates.

If the decision was made in respect of conduct by a person other than the
liable person, the references to the liable person are to be read as references
to that other person.