having similar powers Regulations, 2016

L.N. 145 of 2016

POLICE ACT

(CAP. 164)

Simplification of Exchange of Information or Intelligence

between the Malta Police Force and other State Agencies

of the Member States of the European Union

having similar powers Regulations, 2016

IN EXERCISE of the powers conferred by article 107(1) of the

Police Act, the Minister for Home Affairs and National Security has

made the following regulations:-

(1) The title of these regulations is the Simplification of

Exchange of Information or Intelligence between the Malta Police

Force and other State Agencies of the Member States of the European

Union having similar powers Regulations, 2016.

(2) These regulations transpose Council Framework Decision

2006/960/JHA of 18 December 2006 on simplifying the exchange of

information and intelligence between law enforcement authorities of

the Member States of the European Union.

(3) The scope of these regulations is to simplify the exchange

of already available information or intelligence between the Malta

Police Force and the other state agencies of the Member States having

similar powers where there are factual reasons to believe that the

information or intelligence could assist in the detection, prevention or

investigation of criminal offences.

For the purpose of these regulations

"Act" means the Police Act;

"Eurojust" shall have the same meaning assigned to it by

Council Decision 2002/187/JHA on setting up Eurojust, as amended

by Council Decision 2003/659/JHA, and Council Decision 2009/426/

JHA of 16 December 2008 on the strengthening of Eurojust;

"the European Union" means the European Union as referred to

in the Treaty;

"Europol" shall have the same meaning assigned to it by

Council Decision 2009/371/JHA establishing the European Police

Office of 6 April 2009;

"Member State" means any one of the Member States of the

European Union;

"State agencies having similar powers" means the Police,

Customs Department or other authority that is authorised by national

law to detect, prevent and investigate offences or criminal activities

and to exercise authority and take coercive measures in the context of

such activities and excludes authorities, bodies, agencies or units

dealing especially with national security issues. For the purpose of

these regulations, the European Police Office "Europol" and

"Eurojust" shall be considered as state agencies having similar

powers;

"the Data Protection Regulations" means the Data Protection S.L. 440.05

(Processing of Personal Data in the Police Sector) Regulations and

the Processing of Personal Data (Police and Judicial Cooperation in S.L. 440.06

Criminal Matters) Regulations;

"the Treaty" shall have the same meaning assigned to it by

article 2 of the European Union Act.

(1) Without prejudice to any other provision under the Exchange of

Act or the Data Protection Regulations, the Police shall exchange information

intelligence with

information or intelligence already available to it with other state other

agencies.

agencies of other Member States having similar powers as if these

state agencies were established in Malta.

(2) Where the information or intelligence may, under any

relevant provision of Maltese law, be accessed by the Police only

pursuant to an agreement or authorisation of a judicial authority, the

Police shall refrain from communicating the information or

intelligence to the state agencies of other Member States having

similar powers, unless the Attorney General agrees or authorises the

communication of such information or intelligence. Such agreement

or authorisation shall always be sought whenever the requesting

agency requests access to information or intelligence related to any

inquiry relating to the "in genere", or any inquest or "repertus" or

whenever the information or intelligence is required for use as

evidence.

(1) Where a request for communication of information Request for

or intelligence by a State agency in another Member State having communication

of information

similar powers requires the Police to respond within a given time or

by a State

limit, the Police shall reply within such time limit, unless the agency

information or intelligence is not available or if there are

justifications impeding such a response.

(2) The Police shall reply in writing informing the body

making the request of the decision taken as to whether the request can

be met or not.

(3) The Police may refrain to communicate information or

intelligence only if there are factual reasons to assume that the

communication would

(a)

harm essential national security interests of Malta;

or

(b) jeopardise the success of a current investigation or a

criminal intelligence operation or the safety of individuals; or

(c)

clearly be disproportionate or irrelevant with regard

to the purpose for which it has been requested.

(4) Where the request pertains to an offence punishable by a

term of imprisonment of one year or less under any relevant provision

of Maltese law, the Police may refrain from communicating such

data.

(5) The Data Protection Regulations and other provisions on

data protection shall apply to the exchange of information or

intelligence depending on the chosen channel of communication.

€0.27