L.S. 9.25 Regolamenti dwar l-Ordni ta' Investigazzjoni Ewropew

(1)of regulation 9, by an authority mentioned in paragraph (

1. a)of this definition prior to the transmission of the EIO to the executing State: Provided further that in the event that the EIO has been validated by a judicial authority other than a court of criminal jurisdiction in terms of paragraph (
2. a)of this definition, the said judicial authority shall be regard as an issuing authority and the EIO shall be transmitted in terms of the Directive and these regulations. "issuing State" means the Member State of the European Union in which the EIO is issued; "TEU" means Treaty on European Union. Limitation. 3. These regulations shall be limited to the transmission of European Investigation Orders between Malta and Member States of the European Union excluding Ireland and Denmark and shall apply to orders issued from the 22nd May, 2017. Obligation to execute. Amended by: L.N. 451 of 2020. 4.

(1)An EIO received by Malta as an executing State shall be executed on the basis of the principle of mutual recognition and in accordance with these regulations.

(2)The issuing of EIO by Malta pursuant to these regulations may be requested by a suspected or accused person, or by a lawyer on his behalf, within the framework of applicable defence rights by the filing of an application before a court of criminal jurisdiction.

(3)These regulations shall not have the effect of modifying the obligation to respect the fundamental rights and legal principles as enshrined in Article 6 of the TEU, including the rights of defence of persons subject to criminal proceedings, and any obligations incumbent on judicial authorities in this respect shall remain unaffected. Scope of the EIO. Amended by: L.N. 451 of

2. An EIO issued pursuant to these regulations shall cover any investigative measure with the exception of the setting up of a joint investigation team and the gathering of evidence within such a EUROPEAN INVESTIGATION ORDER [ S.L. 9.25 3 team as provided in Article 13 of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union ("the Convention") and in Council Framework Decision 2002/ 465/JHA, other than for the purposes of applying, respectively, Article 13

(8)of the Convention and Article 1

(8)of the Framework Decision. 6. For the purposes of these regulations, the Attorney General shall be competent to receive and recognize any European Investigation Order issued by an issuing State and to transmit to the executing State any European Investigation Orders issued in Malta. 7. An EIO may be issued: Competent authorities. Substituted by: L.N. 451 of 2020. Types of proceedings. (

1. a)with respect to criminal proceedings that are brought by, or that may be brought before, a judicial authority in respect of a criminal offence under the national law of the issuing State; (
2. b)in proceedings brought by administrative authorities in respect of acts which are punishable under the national law of the issuing State by virtue of being infringements of the rules of law and where the decision may give rise to proceedings before a court having jurisdiction, in particular, in criminal matters; (
3. c)in proceedings brought by judicial authorities in respect of acts which are punishable under the national law of the issuing State by virtue of being infringements of the rules of law, and where the decision may give rise to proceedings before a court having jurisdiction, in particular, in criminal matters; and (
4. d)in connection with proceedings referred to in paragraphs (a), (b), and (
5. c)which relate to offences or infringements of law for which a legal person may be held liable or punished in the issuing State. 8.

(1)The EIO in the form set out in the First Schedule shall be completed, signed, and its content certified as accurate and correct by the issuing authority.

(2)The EIO shall, in particular, contain the following information: (

1. a)data about the issuing authority and, where applicable, the validating authority; (
2. b)the object of the EIO and reasons for the EIO; (
3. c)the necessary information available on the person or persons concerned; Content and form of the EIO. Amended by: L.N. 451 of 2020. 4 [ S.L. 9.25 EUROPEAN INVESTIGATION ORDER (
4. d)a description of the criminal act, which is the subject of the investigation or proceedings, and the applicable provisions of the criminal law of the issuing State; (
5. e)a description of the investigative measure or measures requested and the evidence to be obtained.

(3)When Malta is the executing State, the Maltese or the English languages may be used for completing or translating an EIO received by Malta.

(4)Where Malta is the issuing State, the issuing authority shall translate the EIO set out in the First Schedule into an official language of the executing State or into any other language indicated by the executing State in accordance with Article 5

(2)of the Directive. Conditions for issuing and transmitting the EIO. 9.

(1)The issuing authority may only issue an EIO when it is satisfied that the following conditions have been met: (

1. a)the issuing of the EIO is necessary and proportionate for the purpose of the proceedings referred to in regulation 7 taking into account the rights of the suspected or accused person; and (
2. b)the investigative measure indicated in the EIO could have been ordered under the same conditions in a similar domestic case.

(2)The conditions referred to in sub-regulation

(1)shall be assessed by the issuing authority in each case.

(3)Where the executing authority has reason to believe that the conditions referred to in sub-regulation

(1)have not been met, it may consult the issuing authority on the importance of executing the EIO. After that consultation the issuing authority may decide to withdraw the EIO. Transmission of the EIO.  Amended by: L.N. 451 of 2020. 10.

(1)The EIO completed in accordance with regulation 8 shall be transmitted from the issuing authority to the executing authority by any means capable of producing a written record under conditions allowing the executing State to establish authenticity.

(2)Any further official communication shall be made directly between the issuing authority and/or the Attorney General and/or the executing authorities in the executing State indicated in the EIO form itself.

(3)Without prejudice to regulation 6, the Attorney General shall be the authority competent to transmit and receive European Investigation Orders in terms of the Directive and these regulations.

(4)The Attorney General may transmit in terms of EUROPEAN INVESTIGATION ORDER [ S.L. 9.25 5 regulation 6 via the telecommunications system of the European Judicial Network (EJN), as set up by Council Joint Action 98/428/ JHA.

(5)If the identity of the executing authority is unknown, the issuing authority shall make all necessary inquiries, including via the EJN contact points, in order to obtain the information from the executing State.

(6)Where the authority in the executing State which receives the EIO has no competence to recognise the EIO or to take the necessary measures for its execution, it shall, ex officio, transmit the EIO to the executing authority and so inform the issuing authority.

(7)Any difficulties concerning the transmission or authenticity of any document needed for the execution of the EIO shall be dealt with by direct contacts between the issuing authority and the executing authority involved or, where appropriate, with the involvement of the central authorities of the Member States. 11.

(1)Where an issuing authority issues an EIO which supplements an earlier EIO, it shall indicate this fact in the EIO in Section D of the form set out in the First Schedule. EIO related to earlier EIO. Amended by: L.N. 451 of 2020.

(2)If the issuing authority assists in the execution of the EIO in the executing State, in accordance with sub-regulation 12

(4), it may, without prejudice to notifications made under regulation 36

(1)(c), address an EIO which supplements an earlier EIO directly to the court of criminal jurisdiction or the Police, while present in that State.

(3)The EIO which supplements an earlier EIO shall be certified in accordance with regulation 8

(1), and, where applicable, be validated in accordance with the definition of "issuing authority" as specified in regulation 2. 12.

(1)the court of criminal jurisdiction or the Police shall recognise an EIO, transmitted in accordance with these regulations, without any further formality being required, and ensure its execution in the same way and under the same modalities as if the investigative measure concerned had been ordered by an authority of the executing State, unless that authority decides to invoke one of the grounds for non-recognition or non-execution or one of the grounds for postponement provided for in these regulations.

(2)The executing authority shall comply with the formalities and procedures expressly indicated by the issuing authority in the issuing State unless otherwise provided in these regulations and provided that such formalities and procedures are not contrary to the fundamental principles of law of Malta. (2A) The Attorney General shall certify that the EIO was Recognition and execution. Amended by: L.N. 451 of 2020. 6 [ S.L. 9.25 EUROPEAN INVESTIGATION ORDER issued by a competent issuing authority in the issuing State.

(3)Where a court of criminal jurisdiction or the Police as executing authority receives an EIO which has not been issued by an issuing authority as specified with sub-regulation

(2), the court of criminal jurisdiction or the Police, as the case may be, shall return the EIO to the issuing State.

(4)The issuing authority may request that one or more authorities of the issuing State assist in the execution of the EIO in support to the competent authorities of the executing State to the extent that the designated authorities of the issuing State would be able to assist in the execution of the investigative measures indicated in the EIO in a similar domestic case. The executing authority shall comply with this request provided that such assistance is not contrary to the fundamental principles of law of the executing State or does not harm its essential national security interests.

(5)The authorities of the issuing State present in the executing State shall be bound by the law of the executing State during the execution of the EIO. They shall not have any law enforcement powers in the territory of the executing State, unless the execution of such powers in the territory of the executing State is in accordance with the law of the executing State and to the extent agreed between the issuing authority and the executing authority.

(6)The issuing authority and executing authority may consult each other, by any appropriate means, with a view to facilitating the efficient application of this regulation. Recourse for a different type of investigative measure. Amended by: L.N. 451 of 2020. 13.

(1)The executing authority shall have, wherever possible, recourse to an investigative measure other than that provided for in the EIO where: (

1. a)the investigative measure indicated in the EIO does not exist under the law of the executing State; or (
2. b)the investigative measure indicated in the EIO would not be available in a similar domestic case.

(2)Without prejudice to regulation 14, sub-regulation

(1)does not apply to the following investigative measures, which always have to be available under the law of Malta: (

1. a)the obtaining of information or evidence which is already in the possession of the executing authority and the information or evidence could have been obtained, in accordance with the law of the executing State, in the framework of criminal proceedings in similar domestic cases or for the purposes of the EIO; (
2. b)the obtaining of information contained in EUROPEAN INVESTIGATION ORDER [ S.L. 9.25 7 databases held by police or judicial authorities and directly accessible by the executing authority in the framework of criminal proceedings; (
3. c)the hearing of a witness, expert, victim, suspected or accused person or third party in the territory of the executing State; (
4. d)any non-coercive investigative measure as defined under the law of the executing State; (
5. e)the identification of persons holding subscription of a specified phone number or IP address. a

(3)The executing authority may also have a recourse to an investigative measure other than that indicated in the EIO where the investigative measure selected by the executing authority would achieve the same result by less intrusive means than the investigative measure indicated in the EIO.

(4)When the executing authority decides to avail itself of the possibility referred to in sub-regulations

(1)and

(3), it shall first inform the issuing authority, which may decide to withdraw or supplement the EIO.

(5)Where, in accordance with sub-regulation

(1), the investigative measure indicated in the EIO does not exist in terms of the laws of Malta or it would not be available in a similar domestic case and where there is no other investigative measure which would have the same result as the investigative measure requested, the executing authority shall notify the issuing authority that it has not been possible to provide the assistance requested. 14.

(1)Without prejudice to regulation 4

(3), recognition or execution of an EIO may be refused in the executing State where: (

1. a)there is an immunity or a privilege under the law of the executing State which makes it impossible to execute the EIO or there are rules on determination and limitation of criminal liability relating to freedom of the press and freedom of expression in other media, which make it impossible to execute the EIO; (
2. b)in a specific case the execution of the EIO would harm essential national security interests, jeopardise the source of the information or involve the use of classified information relating to specific intelligence activities; (
3. c)the EIO has been issued in proceedings referred to in regulation 7(
4. b)and (
5. c)and the investigative measure would not be authorised under the law of the executing State in a similar domestic case; Grounds for nonrecognition or nonexecution. 8 [ S.L. 9.25 EUROPEAN INVESTIGATION ORDER (
6. d)the execution of the EIO would be contrary to the principle of ne bis in idem; (
7. e)the EIO relates to a criminal offence which is alleged to have been committed outside the territory of the issuing State and wholly or partially on the territory of the executing State, and the conduct in connection with which the EIO is issued is not an offence in the executing State; (
8. f)there are substantial grounds to believe that the execution of the investigative measure indicated in the EIO would be incompatible with the executing State's obligations in accordance with Article 6 of the TEU and the Charter; (
9. g)the conduct for which the EIO has been issued does not constitute an offence under the law of the executing State, unless it concerns an offence listed within the categories of offences set out in the Fourth Schedule, as indicated by the issuing authority in the EIO, if it is punishable in the issuing State by a custodial sentence or a detention order for a maximum period of at least three years; or (
10. h)the use of the investigative measure indicated in the EIO is restricted under the law of the executing State to a list or category of offences or to offences punishable by a certain minimum threshold, which does not include the offence covered by the EIO.

(2)Sub-regulations

(1)(

1. g)and (
2. h)do not apply to investigative measures referred to in regulation 13

(2).

(3)Where the EIO concerns an offence in connection with taxes or duties, customs and exchange, the executing authority shall not refuse recognition or execution on the ground that the law of the executing State does not impose the same kind of tax or duty or does not contain a tax, duty, customs and exchange regulation of the same kind as the law of the issuing State.

(4)In the cases referred to in sub-regulation

(1)(a), (b), (d), (

1. e)and (
2. f)before deciding not to recognise or not to execute an EIO, either in whole or in part, the executing authority shall consult the issuing authority, by any appropriate means, and shall, where appropriate, request the issuing authority to supply any necessary information without delay.

(5)In the case referred to in sub-regulation

(1)(a) and where power to waive the privilege or immunity lies with an authority of the executing State, the executing authority shall request it to exercise that power forthwith. Where power to waive the privilege or immunity lies with an authority of another State or international organisation, it shall be for the issuing authority to request the authority concerned to EUROPEAN INVESTIGATION ORDER [ S.L. 9.25 exercise that power. 15.

(1)The decision on the recognition or execution shall be taken and the investigative measure shall be carried out with the same celerity and priority as for a similar domestic case and, in any case, within the time limits provided in this regulation. Time limits for recognition or execution.

(2)Where the issuing authority has indicated in the EIO that, due to procedural deadlines, the seriousness of the offence or other particularly urgent circumstances, a shorter deadline than those provided in this regulation is necessary, or if the issuing authority has indicated in the EIO that the investigative measure must be carried out on a specific date, the executing authority shall take as full account as possible of this requirement.

(3)The executing authority shall take the decision on the recognition or execution of the EIO as soon as possible and, without prejudice to sub-regulation

(5), no later than 30 days after the receipt of the EIO by the competent executing authority.

(4)Unless grounds for postponement under regulation 18 exist or evidence mentioned in the investigative measure covered by the EIO is already in the possession of the executing State, the executing authority shall carry out the investigative measure without delay and without prejudice to sub-regulation

(5), not later than 90 days following the taking of the decision referred to in sub-regulation

(3).

(5)If it is not practicable in a specific case for the competent executing authority to meet the time limit set out in sub-regulation

(3)or the specific date set out in sub-regulation

(2), it shall, without delay, inform the competent authority of the issuing State by any means, giving the reasons for the delay and the estimated time necessary for the decision to be taken. In such a case, the time limit laid down in sub-regulation

(3)may be extended by a maximum of 30 days.

(6)If it is not practicable in a specific case for the competent executing authority to meet the time limit set out in sub-regulation

(4), it shall, without delay, inform the competent authority of the issuing State by any means, giving the reasons for the delay and it shall consult with the issuing authority on the appropriate timing to carry out the investigative measure. 16.

(1)The executing authority shall, without undue delay, transfer the evidence obtained or already in the possession of the competent authorities of the executing State as a result of the execution of the EIO to the issuing State. Where requested in the EIO and if possible under the law of the executing State, the evidence shall be immediately transferred to the competent authorities of the issuing State assisting in the execution Transfer of evidence. 9 10 [ S.L. 9.25 EUROPEAN INVESTIGATION ORDER of the EIO in accordance with regulation 12

(4).

(2)The transfer of the evidence may be suspended, pending a decision regarding a legal remedy, unless sufficient reasons are indicated in the EIO that an immediate transfer is essential for the proper conduct of its investigations or for the preservation of individual rights. However, the transfer of evidence shall be suspended if it would cause serious and irreversible damage to the person concerned.

(3)When transferring the evidence obtained, the executing authority shall indicate whether it requires the evidence to be returned to the executing State as soon as it is no longer required in the issuing State.

(4)Where the objects, documents, or data concerned are already relevant for other proceedings, the executing authority may, at the explicit request of and after consultations with the issuing authority, temporarily transfer the evidence on the condition that it be returned to the executing State as soon as it is no longer required in the issuing State or at any other time or occasion agreed between the competent authorities. Legal remedies. 17.

(1)All legal remedies available in a similar domestic case shall be applicable to the investigative measures indicated in the EIO.

(2)The substantive reasons for issuing the EIO may be challenged only in an action brought in the issuing State, without prejudice to the guarantees of fundamental rights in the executing State.

(3)Where it would not undermine the need to ensure confidentiality of an investigation under regulation 22

(1), the issuing authority and the executing authority shall take the appropriate measures to ensure that information is provided about the possibilities under national law for seeking the legal remedies when these become applicable and in due time to ensure that they can be exercised effectively.

(4)All the time-limits for seeking a legal remedy shall be the same as those that are provided for in similar domestic cases and shall be applied in a way that guarantees the possibility of the effective exercise of these legal remedies for the parties concerned.

(5)The issuing authority and the executing authority shall inform each other about the legal remedies sought against the issuing, the recognition or the execution of an EIO.

(6)A legal challenge shall not suspend the execution of the investigative measure, unless it is provided in similar domestic cases. EUROPEAN INVESTIGATION ORDER [ S.L. 9.25 11

(7)The issuing State shall take into account a successful challenge against the recognition or execution of an EIO in accordance with its own national law. Without prejudice to national procedural rules, the Member States shall ensure that in criminal proceedings in the issuing State the rights of the defence and the fairness of the proceedings are respected when assessing evidence obtained through the EIO. 18.

(1)The recognition or execution of the EIO may be postponed in the executing State where: (

1. a)its execution might prejudice an on-going criminal investigation or prosecution, until such time as the executing State deems reasonable; Grounds for postponement of recognition or execution. (
2. b)the objects, documents, or data concerned are already being used in other proceedings, until such time as they are no longer required for that purpose.

(2)As soon as the ground for postponement has ceased to exist, the executing authority shall forthwith take the necessary measures for the execution of the EIO and inform the issuing authority by any means capable of producing a written record. 19.

(1)The Attorney General shall receive the EIO and shall, without delay, and in any case within a week of the reception of the EIO, acknowledge reception of the EIO by completing and sending the form set out in the Second Schedule. Where a central authority has been designated in accordance with regulation 10

(3), this obligation is applicable both to the central authority and to the executing authority which receives the EIO from the central authority. In the cases referred to in regulation 10

(6), this obligation applies both to the competent authority which initially received the EIO and to the executing authority to which the EIO is finally transmitted.

(2)Without prejudice to regulations 13

(4)and

(5)the court of criminal jurisdiction or the Police shall inform the issuing authority immediately by any means: (

1. a)if it is impossible for the executing authority to take a decision on the recognition or execution due to the fact that the form provided for in the First Schedule is incomplete or manifestly incorrect; (
2. b)if the executing authority, in the course of the execution of the EIO, considers without further enquiries that it may be appropriate to carry out investigative measures not initially foreseen, or which could not be specified when the EIO Obligation to inform. Amended by: L.N. 451 of 2020. 12 [ S.L. 9.25 EUROPEAN INVESTIGATION ORDER was issued, in order to enable the issuing authority to take further action in the specific case; or (
3. c)if the executing authority establishes that, in the specific case, it cannot comply with formalities and procedures expressly indicated by the issuing authority in accordance with regulation 12. Upon request by the issuing authority, the information shall be confirmed, without delay, by any means capable of producing a written record.

(3)Without prejudice to regulations 13

(4)and

(5)the court of criminal jurisdiction or the Police shall inform the issuing authority without delay by any means capable of producing a written record: (

1. a)of any decision taken pursuant to regulations 13 or 14; (
2. b)of any decision to postpone the execution or recognition of the EIO, the reasons for the postponement and, if possible, the expected duration of the postponement. Criminal liability regarding officials. Cap. 9. Substituted by: L.N. 451 of 2020. Civil liability regarding officials. Amended by: L.N. 451 of 2020. 20. When present in Malta, in the application of these regulations, officials from the issuing State shall be regarded as public officers of Malta in accordance with the provisions of the Criminal Code with respect to offences committed against them or by them. 21.

(1)Where, in the application of these regulations, officials of a Member State are present in Malta, the Member State shall be liable for any damage caused by its officials during their operations.

(2)The Member State whose officials have caused damage to any person in Malta shall reimburse in full any sums the latter Member State has paid to the victims or persons entitled on their behalf.

(3)Without prejudice to the exercise of its rights vis-à-vis third parties and with the exception of sub-regulation

(3), the Government shall refrain in cases referred to in sub-regulation

(1)from requesting reimbursement of damages it has sustained from another Member State. Confidentiality. 22.

(1)All the necessary measures shall be taken to ensure that in the execution of an EIO the issuing authority and the executing authority take due account of the confidentiality of the investigation.

(2)The executing authority shall, in accordance with its national law, guarantee the confidentiality of the facts and the EUROPEAN INVESTIGATION ORDER [ S.L. 9.25 13 substance of the EIO, except to the extent necessary to execute the investigative measure. If the executing authority cannot comply with the requirement of confidentiality, it shall notify the issuing authority without delay.

(3)The issuing authority shall, in accordance with its national law and unless otherwise indicated by the executing authority, not disclose any evidence or information provided by the executing authority, except to the extent that its disclosure is necessary for the investigations or proceedings described in the EIO.

(4)All the necessary measures shall be taken to ensure that banks do not disclose to the bank customer concerned or to other third persons that information has been transmitted to the issuing State in accordance with regulations 29 and 30 or that an investigation is being carried out.

(5)Unless these regulations otherwise provide, the implementing procedure of the provisions of the Criminal Code shall apply mutatis mutandis in respect of any breach of confidentiality in violation of these regulations. 23. Repealed by Legal Notice 259 of 2023. 24.

(1)Unless otherwise provided in these regulations, the executing State shall bear all costs undertaken in Malta which are related to the execution of an EIO.

(2)Where the executing authority considers that the costs for the execution of the EIO may be deemed exceptionally high, it may consult with the issuing authority on whether and how the costs could be shared or that the EIO be modified and how. The executing authority shall inform the issuing authority in advance of the detailed specifications of the part of the costs deemed exceptionally high.

(3)In exceptional situations where no agreement can be reached with regard to the costs referred to in sub-regulation

(2), the issuing authority may decide to: (

1. a)withdraw the EIO in whole or in part; or (
2. b)keep the EIO, and bear the part of the costs deemed exceptionally high.  Cap. 9. Protection of personal data.  Cap. 586. Costs. Amended by: L.N. 451 of 2020. 14 [ S.L. 9.25 Temporary transfer to the issuing State of persons held in custody for the purpose of carrying out an investigative measure. Amended by: L.N. 451 of 2020. EUROPEAN INVESTIGATION ORDER 25.

(1)An EIO may be issued for the temporary transfer of a person in custody to Malta or from Malta to another Member State to which the Directive applies for the purpose of carrying out an investigative measure with a view to gathering evidence for which the presence of that person on the territory of the issuing State is required, provided that he shall be sent back within the period stipulated by the executing State.

(2)In addition to the grounds for non-recognition or nonexecution referred to in regulation 14 the execution of the EIO may also be refused if: (

1. a)the person in custody does not consent; or (
2. b)the transfer is liable to prolong the detention of the person in custody.

(3)Without prejudice to sub-regulation

(2)(a), where the executing State considers it necessary in view of the person's age or physical or mental condition, the opportunity to state the opinion on the temporary transfer shall be given to the legal representative of the person in custody.

(4)In cases referred to in sub-regulation

(1), transit of the person in custody through the territory of a third Member State ("the Member State of transit") shall be granted on application, accompanied by the EIO, document attesting the identity of the person in custody and identity details of the officers accompanying the person.

(5)The practical arrangements regarding the temporary transfer of the person including the details of his custody conditions in the issuing State, and the dates by which he must be transferred from and returned to Malta shall be agreed between the issuing State and Malta, ensuring that the physical and mental condition of the person concerned, as well as the level of security required in the issuing State, are taken into account.

(6)The transferred person shall remain in custody in the territory of the issuing State and, where applicable, in the territory of the Member State of transit, for the acts or convictions for which he has been kept in custody in the executing State, unless the executing State applies for his release.

(7)The period of custody in the territory of the issuing State shall be deducted from the period of detention which the person concerned is or will be obliged to undergo in the territory of Malta.

(8)Without prejudice to sub-regulation

(6), a person transferred to Malta shall not be prosecuted or detained or subjected to any other restriction of his personal liberty in the issuing State for acts EUROPEAN INVESTIGATION ORDER [ S.L. 9.25 15 committed or convictions handed down before his departure from the territory of the executing State and which are not specified in the EIO.

(9)The immunity referred to in sub-regulation

(8)shall cease to exist if the transferred person, having had an opportunity to leave for a period of 15 consecutive days from the date when his presence is no longer required by the issuing authorities, has either: (a) nevertheless remained in the territory; or (b) having left it, has returned.

(10)Costs resulting from the application of this regulation shall be borne in accordance with regulation 24, except for the costs arising from the transfer of the person to and from the issuing State which shall be borne by that State.

(11)Unless these regulations otherwise provide, the implementing procedure of this regulation shall be governed by article 435BC of the Criminal Code which shall apply mutatis mutandis to this regulation.    Cap. 9. 26.

(1)An EIO may be issued for the temporary transfer of a person held in custody in the issuing State for the purpose of carrying out an investigative measure with a view to gathering evidence for which his presence on the territory of the executing State is required. Temporary transfer to the executing State of persons held in custody for the purpose of carrying out an investigative measure.

(2)Sub-regulation

(2)(a) and regulation 25

(3)to

(9)are applicable mutatis mutandis to the temporary transfer under this regulation.

(3)Costs resulting from the application of this regulation shall be borne in accordance with regulation 24, except for the costs arising from the transfer of the person concerned to and from the executing State which shall be borne by the issuing State.

(4)Unless these regulations otherwise provide, the implementing procedure of this regulation shall be governed by article 435BB of the Criminal Code which shall apply mutatis mutandis to this regulation.    Cap. 9. 27.

(1)Where a person is in Malta and has to be heard as a witness or expert by the competent authorities of the issuing State, the issuing authority may issue an EIO in order to hear the witness or expert by video conference or other audiovisual transmission in accordance with sub-regulations

(5)to

(7). Hearing by video conference or other audiovisual transmission. Amended by: L.N. 451 of 2020. The issuing authority may also issue an EIO for the purpose of hearing a suspected or accused person by video conference or other audiovisual transmission. 16 [ S.L. 9.25 EUROPEAN INVESTIGATION ORDER

(2)In addition to the grounds for non-recognition or nonexecution referred to in regulation 14, execution of an EIO may be also refused if either: (

1. a)the suspected or accused person does not consent; or (
2. b)the execution of such an investigative measure in a particular case would be contrary to the fundamental principles of the law of the executing State.

(3)The issuing authority and the executing authority shall agree the practical arrangements. When agreeing such arrangements, the executing authority shall undertake to: (

1. a)summon the witness or expert concerned, indicating the time and the venue of the hearing; (
2. b)summon the suspected or accused persons to appear for the hearing in accordance with the detailed rules laid down in the law of the executing State and inform such persons about their rights under the law of the issuing State, in such a time as to allow them to exercise their rights of defence effectively; and (
3. c)ensure the identity of the person to be heard.

(4)If in circumstances of a particular case the court of criminal jurisdiction or the Police have no access to technical means for a hearing held by video conference, such means may be available to them by the issuing State by mutual agreement.

(5)Where a hearing is held by video conference or other audiovisual transmission, the following rules shall apply: (

1. a)the hearing shall take place in the presence of a magistrate, where necessary assisted by an interpreter, and shall also be responsible for ensuring both the identity of the person to be heard and respect for the fundamental principles of the law of Malta. If the magistrate is of the view that during the hearing the fundamental principles of the law of the executing State are being infringed, the court shall immediately take the necessary measures to ensure that the hearing continues in accordance with those principles; (
2. b)measures for the protection of the person to be heard shall be agreed, where necessary, between the competent authorities of the issuing State and Malta; (
3. c)the hearing shall be conducted directly by, or under the direction of, the competent authority of the issuing State in accordance with its own laws; EUROPEAN INVESTIGATION ORDER [ S.L. 9.25 17 (
4. d)at the request of the issuing State or the person to be heard, Malta shall ensure that the person to be heard is assisted by an interpreter, if necessary; (
5. e)suspected or accused persons shall be informed in advance of the hearing of the procedural rights which would accrue to them, including the right not to testify, under the law of the executing State and the issuing State. Witnesses and experts may claim the right not to testify which would accrue to them under the law of either the executing or the issuing State and shall be informed about this right in advance of the hearing.

(6)Without prejudice to any measures agreed for the protection of persons, on the conclusion of the hearing, the executing authority shall draw up minutes indicating the date and place of the hearing, the identity of the person heard, the identities and functions of all other persons in the executing State participating in the hearing, any oaths taken and the technical conditions under which the hearing took place. The document shall be forwarded by the executing authority to the issuing authority.

(7)All the necessary measures shall be taken to ensure that, where the person is being heard within Malta in accordance with this regulation and refuses to testify when under an obligation to testify or does not testify the truth, the provisions of the Criminal Code shall apply Unless these regulations otherwise provide, the implementing procedure of the provisions of the Criminal Code shall apply to the situations proposed for in this sub-regulation.          Cap. 9. 28.

(1)If a person is in Malta and has to be heard as a witness or expert by competent authorities of another Member State, the issuing authority of the Member State may, where it is not appropriate or possible for the person to be heard to appear in its territory in person, and after having examined other suitable means, issue an EIO in order to hear a witness or expert by telephone conference as provided for in sub-regulation

(2). Hearing by telephone conference. Amended by: L.N. 451 of 2020.

(2)Unless otherwise agreed, regulation 27

(3),

(5),

(6)and

(7)shall apply mutatis mutandis to hearings by telephone conference.

(3)Unless these regulations otherwise provide, the implementing procedure of this regulation shall be governed by articles 647A and 649

(13)of the Criminal Code which shall apply mutatis mutandis to this regulation.    Cap. 9. 29.

(1)An EIO may be issued in order to determine whether any natural or legal person subject to the criminal proceedings concerned holds or controls one or more accounts, of whatever nature, in any bank located in Malta, and if so, to obtain all the details of the identified accounts. Information on bank and other financial accounts. Amended by: L.N. 451 of 2020.

(2)All the measures necessary shall be taken to provide the 18 [ S.L. 9.25 EUROPEAN INVESTIGATION ORDER information referred to in sub-regulation

(1)in accordance with the conditions under this regulation.

(3)The information referred to in sub-regulation

(1)shall also, if requested in the EIO, include accounts for which the person subject to the criminal proceedings concerned has powers of attorney.

(4)The obligation set out in this regulation shall apply only to the extent that the information is in the possession of the bank keeping the account.

(5)In the EIO the issuing authority shall indicate the reasons why it considers that the requested information is likely to be of substantial value for the purpose of the criminal proceedings concerned and on what grounds it presumes that banks in the executing State hold the account and, to the extent available, which banks may be involved. It shall also include in the EIO any information available which may facilitate its execution.

(6)An EIO may also be issued to determine whether any natural or legal person subject to the criminal proceedings concerned holds one or more accounts, in any non-bank financial institution located on the territory of the executing State. Sub-regulations

(3)to

(5)shall apply mutatis mutandis. In such case and in addition to the grounds for non-recognition and non-execution referred to in regulation 14, the execution of the EIO may also be refused if the execution of the investigative measure would not be authorised in a similar domestic case. Cap. 9.

(7)Unless these regulations otherwise provide, the implementing procedure of this regulation shall be governed by article 435AA and 435BA of the Criminal Code which shall apply mutatis mutandis to this regulation. Information on banking and other financial operations. 30.

(1)An EIO may be issued in order to obtain the details of specified bank accounts and of banking operations which have been carried out during a defined period through one or more accounts specified therein, including the details of any sending or recipient account.

(2)All the measures necessary shall be taken to provide the information referred to in sub-regulation

(1)in accordance with the conditions under this regulation.

(3)The obligation set out in this regulation shall apply only to the extent that the information is in the possession of the bank in which the account is held.

(4)In the EIO the issuing authority shall indicate the reasons why it considers the requested information relevant for the purpose of the criminal proceedings concerned. EUROPEAN INVESTIGATION ORDER [ S.L. 9.25 19

(5)An EIO may also be issued with regard to the information provided for in sub-regulation

(1)with reference to the financial operations conducted by non-banking financial institutions. Sub-regulations 3 to 4 shall apply mutatis mutandis. In such case and in addition to the grounds for non-recognition and non-execution referred to in regulation 14, the execution of the EIO may also be refused where the execution of the investigative measure would not be authorised in a similar domestic case.

(6)Unless these regulations otherwise provide, the implementing procedure of this regulation shall be governed by article 435AA and BA of the Criminal Code which shall apply mutatis mutandis to these regulations.    Cap. 9. 31.

(1)When the EIO is issued for the purpose of executing an investigative measure requiring the gathering of evidence in real time, continuously and over a certain period of time, such as: Investigative measures implying the gathering of evidence in real time, continuously and over a certain period of time. Amended by: L.N. 451 of 2020. (

1. a)the monitoring of banking or other financial operations that are being carried out through one or more specified accounts; (
2. b)the controlled deliveries in Malta; its execution may be refused, in addition to the grounds for nonrecognition and non-execution referred to in regulation 14, if the execution of the investigative measure concerned would not be authorised in a similar domestic case.

(2)The practical arrangements regarding the investigative measure referred to in sub-regulation

(1)(b) and wherever else necessary shall be agreed between the issuing State and the executing State.

(3)The issuing authority shall indicate in the EIO why it considers the information requested relevant for the purpose of the criminal proceedings concerned.

(4)The right to act, to direct and to control operations related to the execution of an EIO referred to in sub-regulation

(1)shall lie with the competent authorities of the executing State.

(5)Unless these regulations otherwise provide, the implementing procedure of this regulation shall be governed by article 435E of the Criminal Code which shall apply mutatis mutandis to these regulations.   Cap. 9. 32.

(1)An EIO may be issued for the purpose of requesting Malta to assist the issuing State in the conduct of investigations into crime by officers acting under covert or false identity ("covert investigations"). Covert investigations. Amended by: L.N. 451 of 2020. 20 [ S.L. 9.25 EUROPEAN INVESTIGATION ORDER

(2)The issuing authority shall indicate in the EIO why it considers that the covert investigation is likely to be relevant for the purpose of the criminal proceedings concerned. The decision on the recognition and execution of an EIO issued under this regulation shall be taken in each individual case by the competent authorities of Malta with due regard to its national law and procedures.

(3)In addition to the grounds for non-recognition and nonexecution referred to in regulation 14, the executing authority may refuse to execute an EIO as referred to in sub-regulation

(1), where: (

1. a)the execution of the covert investigation would not be authorised in a similar domestic case; or (
2. b)it was not possible to reach an agreement on the arrangements for the covert investigations under sub-regulation

(4).

(4)When covert investigations take place in Malta, such investigation shall take place in accordance with the laws and procedures of Malta. The right to act, to direct and to control the operation related to the covert investigation shall lie solely with the competent authorities of Malta. The duration of the covert investigation, the detailed conditions, and the legal status of the officers concerned during covert investigations shall be agreed between the issuing State and Malta with due regard to the respective national laws and procedures.    Cap. 9.

(5)Unless these regulations otherwise provide, the implementing procedure of this regulation shall be governed by article 435E

(3)of the Criminal Code which shall apply mutatis mutandis to this regulation. Interception of telecommunications with technical assistance of another Member State. Amended by: L.N. 451 of 2020. 33.

(1)An EIO may be issued for the interception of telecommunications in Malta from which technical assistance is needed.

(2)Where more than one Member State is in a position to provide the complete necessary technical assistance for the same interception of telecommunications, the Maltese issuing authority shall send the EIO to only to one Member State. Priority shall always be given to the Member State where the subject of the interception is or will be located.

(3)An EIO referred to in sub-regulation

(1)shall also contain the following information: (

1. a)information for the purpose of identifying the subject of the interception; (
2. b)the desired duration of the interception; and EUROPEAN INVESTIGATION ORDER [ S.L. 9.25 21 (
3. c)sufficient technical data, in particular the target identifier, to ensure that the EIO can be executed.

(4)The issuing authority shall indicate in the EIO the reasons why it considers the indicated investigative measure relevant for the purpose of the criminal proceedings concerned.

(5)In addition to the grounds for non-recognition or nonexecution referred to in regulation 14, the execution of an EIO referred to in sub-regulation

(1)may also be refused where the investigative measure concerned would not have been authorised in a similar domestic case. Malta may make its consent subject to any conditions which would be observed in a similar domestic case.

(6)An EIO referred to in sub-regulation

(1)may be executed by: (

1. a)transmitting telecommunications immediately to the issuing State; or (
2. b)intercepting, recording and subsequently transmitting the outcome of interception of telecommunications to the issuing State. The issuing authority and the executing authority shall consult each other with a view to agreeing on whether the interception is carried out in accordance with paragraph (
3. a)or (b).

(7)When issuing an EIO referred to in sub-regulation

(1)or during the interception, the issuing authority may, where it has a particular reason to do so, also request a transcription, decoding or decrypting of the recording subject to the agreement of the executing authority.

(8)Costs resulting from the application of this regulation shall be borne in accordance with regulation 24, except for the costs arising from the transcription, decoding and decrypting of the intercepted communications which shall be borne by the issuing State.

(9)Unless these regulations otherwise provide, the implementing procedure of this regulation shall be governed by article 628(B)

(1)(d) of the Criminal Code and the Security Service Act which shall apply mutatis mutandis to this regulation.    Cap. 9. Cap. 391. 34.

(1)Where, for the purpose of carrying out an investigative measure, the interception of telecommunications is authorised by the competent authority of Malta (the "intercepting Member State") and the communication address of the subject of the interception specified in the interception order is being used on the territory of another Member State (the "notified Member State") from which no technical assistance is required to carry out the interception, the intercepting Member State shall notify the competent authority of Notification of the Member State where the subject of the interception is located from which no technical assistance is needed. Amended by: L.N. 451 of 2020. 22 [ S.L. 9.25 EUROPEAN INVESTIGATION ORDER the notified Member State of the interception: (a) prior to the interception in cases where the competent authority of the intercepting Member State knows at the time of ordering the interception that the subject of the interception is or will be on the territory of the notified Member State; (b) during the interception or after the interception has been carried out, immediately after it becomes aware that the subject of the interception is or has been during the interception, on the territory of the notified Member State.

(2)The notification referred to in sub-regulation

(1)shall be made by using the form set out in the Third Schedule.

(3)The competent authority of the notified Member States may, in case where the interception would not be authorised in a similar domestic case, notify, without delay and at the latest within 96 hours after the receipt of the notification referred to in sub-regulation

(1), Where (Malta’s competent authority is the notified competent authority) it with the following: (

1. a)that the interception may not be carried out or shall be terminated; and (
2. b)where necessary, that any material already intercepted while the subject of the interception was on its territory may not be used, or may only be used under conditions which it shall specify. The competent authority of the notified Member State shall inform the competent authority of the intercepting Member State of reasons justifying those conditions.

(4)Regulation 8

(2)shall be applicable mutatis mutandis for the notification referred to in sub-regulation

(2). Provisional measures. 35.

(1)The issuing authority may issue an EIO in order to take any measure with a view to provisionally preventing the destruction, transformation, removal, transfer or disposal of an item that may be used as evidence.

(2)The executing authority shall decide and communicate the decision on the provisional measure as soon as possible and, wherever practicable, within 24 hours of receipt of the EIO.

(3)Where a provisional measure referred to in subregulation

(1)is requested the issuing authority shall indicate in the EIO whether the evidence is to be transferred to the issuing State or is to remain in the executing State. The executing authority shall recognise and execute the EIO and transfer the evidence in accordance with the procedures laid down in these regulations. [ S.L. 9.25 EUROPEAN INVESTIGATION ORDER 23

(4)Where, in accordance with sub-regulation

(3), an EIO is accompanied by an instruction that the evidence shall remain in the executing State, the issuing authority shall indicate the date of lifting the provisional measure referred to in sub-regulation

(1), or the estimated date for the submission of the request for the evidence to be transferred to the issuing State.

(5)After consulting the issuing authority, the executing authority may, in accordance with its national law and practice, lay down appropriate conditions in light of the circumstances of the case to limit the period for which the provisional measure referred to in sub-regulation

(1)is to be maintained. If, in accordance with those conditions, it envisages lifting the provisional measure, the executing authority shall inform the issuing authority, which shall be given the opportunity to submit its comments. The issuing authority shall forthwith notify the executing authority that the provisional measure referred to in sub-regulation

(1)has been lifted. 36.

(1)Without prejudice to their application between Member States and third States and their temporary application by virtue of regulation 38, these regulations replace, as from 22 May 2017, the corresponding provisions of the following conventions applicable between the Member States bound by these regulations: Relations to other legal instruments, agreements and arrangements. (

1. a)European Convention on Mutual Assistance in Criminal Matters of the Council of Europe of 20 April 1959, as well as its two additional protocols, and the bilateral agreements concluded pursuant to Article 26 thereof; (
2. b)Convention Agreement; implementing the Schengen (
3. c)Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union and its protocol.

(2)The application of the Framework Decision 2008/978/ JHA is hereby replaced in respect of the Member States bound by the European Investigative Order transposed through these regulations. These regulations replace the Freezing Orders (Execution in the European Union) Regulations with regard to Member States bound by Directive 2014/41/EU of the European Parliament and of the Council regarding the European Investigation Order in criminal matters.      S.L. 9.

1. With regard to Member States bound by Directive 2014/ 41/EU of the European Parliament and of the Council regarding the European Investigation Order in criminal matters, references to Framework Decision 2008/978/JHA and, as regards freezing of evidence, to the Freezing Orders (Execution in the European Union) Regulations, shall be construed as references to these regulations.         S.L. 9.
2. 24 [ S.L. 9.25 Transitional provisions. EUROPEAN INVESTIGATION ORDER 37.

(1)Mutual assistance requests received before 22 May 2017 shall continue to be governed by existing instruments relating to mutual assistance in criminal matters. Decisions to freeze evidence by virtue of Framework Decision 2003/577/JHA and received before 22 May 2017 shall also be governed by that Framework Decision.

(2)Regulation 10

(1)is applicable mutatis mutandis to the EIO following a decision of freezing taken under Framework Decision 2003/577/JHA. Conflict. 38. In the application of these regulations the provisions of these regulations shall prevail over the provisions of any other law if the latter are in conflict or are inconsistent with the provisions of these regulations. EUROPEAN INVESTIGATION ORDER [ S.L. 9.25 25 26 [ S.L. 9.25 EUROPEAN INVESTIGATION ORDER FIRST SCHEDULE EUROPEAN INVESTIGATION ORDER (EIO) This EIO has been issued by a competent authority. The issuing authority certifies that the issuing of this EIO is necessary and proportionate for the purpose of the proceedings specified within it taking into account the rights of the suspected or accused person and that the investigative measures requested could have been ordered under the same conditions in a similar domestic case. I request that the investigative measure or measures specified below be carried out taking due account of the confidentiality of the investigation and that the evidence obtained as a result of the execution of the EIO be transferred. EUROPEAN INVESTIGATION ORDER [ S.L. 9.25 27 28 [ S.L. 9.25 EUROPEAN INVESTIGATION ORDER EUROPEAN INVESTIGATION ORDER [ S.L. 9.25 29 30 [ S.L. 9.25 EUROPEAN INVESTIGATION ORDER EUROPEAN INVESTIGATION ORDER [ S.L. 9.25 31 32 [ S.L. 9.25 EUROPEAN INVESTIGATION ORDER EUROPEAN INVESTIGATION ORDER [ S.L. 9.25 SECOND SCHEDULE CONFIRMATION OF THE RECEIPT OF AN EIO This form has to be completed by the authority of the executing State which received the EIO referred to below. 33 34 [ S.L. 9.25 EUROPEAN INVESTIGATION ORDER EUROPEAN INVESTIGATION ORDER [ S.L. 9.25 35 THIRD SCHEDULE NOTIFICATION This form is used in order to notify a Member State about the interception of telecommunication that will be, is or has been carried out on its territory without its technical assistance. I hereby inform … (notified Member State) of the interception. 36 [ S.L. 9.25 EUROPEAN INVESTIGATION ORDER EUROPEAN INVESTIGATION ORDER [ S.L. 9.25 37 FOURTH SCHEDULE THE CATEGORIES OF OFFENCES REFERRED TO IN ARTICLE 11 - participation in a criminal organisation, - terrorism, - trafficking of 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 Communities' 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/ships, - sabotage.