European Investigation Order Regulations, 2017

L.N. 297 of 2017

CRIMINAL CODE

(CAP. 9)

European Investigation Order Regulations, 2017

IN EXERCISE of the powers conferred by article 628A of the

Criminal Code the Minister for Justice, Culture and Local Government

has made the following regulations:-

The title of these regulations is the European Investigation Citation.

Order Regulations, 2017.

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.

In these regulations, unless the context otherwise requires

Interpretation.

"the Charter" shall mean the Charter of Fundamental Rights of the

European Union ;

"Directive" means the Directive 2014/41/EU regarding the

European Investigation Order in criminal matters;

"European Investigation Order" (EIO) means a judicial decision

which has been issued or validated by a judicial authority of a Member

State of the European Union ("the issuing State") to have one or

several specific investigative measures carried out in another Member

State of the European Union ("the executing State") to obtain evidence

in accordance with these regulations. The EIO may also be issued for

obtaining evidence that is already in the possession of the competent

authorities of the executing State;

"executing authority" means an authority having competence to

recognise an EIO and ensure its execution in accordance with these

regulations and the procedures applicable in a similar domestic case.

Such procedures may require a court authorisation in the executing

State when this is provided by its national law;

"executing State" means the Member State of the European

Union executing the EIO, in which the investigative measure is to be

executed;

"issuing authority" means

(i) a judge, a court, an investigating judge or a

public prosecutor competent in the case concerned; or

(ii) any other competent authority as defined by the

issuing State which, in the specific case, is acting in its

capacity as an investigating authority in criminal

proceedings with competence to order the gathering of

evidence in accordance with national law. In addition,

before it is transmitted to the executing authority, the EIO

shall be validated, after examination of its conformity with

the conditions for issuing an EIO under these regulations,

in particular the conditions set out in regulation 9(1), by a

judge, court, investigating judge or a public prosecutor in

the issuing State. Where the EIO has been validated by a

judicial authority, that authority may also be regarded as an

issuing authority for the purposes of transmission of the

EIO;

"issuing State" means the Member State of the European Union

in which the EIO is issued;

"TEU" means Treaty on European Union.

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.

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 22 nd May, 2017.

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.

(1) Any EIO shall be executed on the basis of the

principle of mutual recognition and in accordance with these

regulations.

(2) The issuing of an EIO may be requested by a suspected or

accused person, or by a lawyer on his behalf, within the framework of

applicable defence rights in conformity with national criminal

procedure.

(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.

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,

B

-

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.

€3.51

The EIO 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 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.

For the purposes of these regulations the Attorney General Competent

shall be competent to receive European Investigation Orders issued in Authorities.

the issuing State and to transmit to the executing State European

Investigation Orders issued in Malta.

An EIO may be issued

Types of

proceedings.

(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;

(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;

(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

(d) in connection with proceedings referred to in

paragraphs (a), (b), and (c) which relate to offences or

infringements of law for which a legal person may be held liable

or punished in the issuing State.

(1) The EIO in the form set out in the First Schedule shall Content and

be completed, signed, and its content certified as accurate and correct form of the EIO.

by the issuing authority.

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

information

(a) data about the issuing authority and, where

applicable, the validating authority;

(b)

the object of the EIO and reasons for the EIO;

(c) the necessary information available on the person or

persons concerned;

(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;

(e)

a description of the investigative measure or

measures requested and the evidence to be obtained.

(3) From among the official languages of the institutions of the

Union only the Maltese and the English languages shall be used for

completing or translating the EIO when Malta is the executing State;

(4) The competent authority of the issuing State shall translate

the EIO set out in the First Schedule into an official language of the

executing State or any other language indicated by the executing State

in accordance with sub-regulation (3).

(1) The issuing authority may only issue an EIO when it

is satisfied that the following conditions have been met

(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

(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.

(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 the executing authority.

(3) Without prejudice to the definition of executing authority in

accordance to regulation 2, the Attorney General shall be competent to

receive European Investigation Orders issued in the issuing State and

to transmit to the executing State European Investigation Orders issued

in Malta.

(4) The issuing authority may transmit EIOs 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) All 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.

(1) Where an issuing authority issues an EIO which EIO related to

supplements an earlier EIO, it shall indicate this fact in the EIO in earlier EIO.

Section D of the form set out in the First Schedule.

(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

executing authority, 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.

(1) The executing authority shall recognise an EIO, Recognition and

transmitted in accordance with these regulations, without any further execution.

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 unless

otherwise provided in these regulations and provided that such

formalities and procedures are not contrary to the fundamental

principles of law of the executing State.

(3) Where an executing authority receives an EIO which has

not been issued by an issuing authority as specified in regulation 2, the

executing authority 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.

(1) The executing authority shall have, wherever

possible, an application to an investigative measure other than that

provided for in the EIO where

(a) the investigative measure indicated in the EIO does

not exist under the law of the executing State; or

(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 the executing State and shall under the

authority of these regulations be available in Malta

(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;

(b) the obtaining of information contained in databases

held by police or judicial authorities and directly accessible by

the executing authority in the framework of criminal

proceedings;

(c) the hearing of a witness, expert, victim, suspected or

accused person or third party in the territory of the executing

State;

(d) any non-coercive investigative measure as defined

under the law of the executing State;

(e) the identification of persons holding a subscription of

a specified phone number or IP address.

(3) The executing authority may also have an application 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 under the law

of the executing State 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.

(1) Without prejudice to regulation 4(3), recognition or Grounds for

non-recognition

execution of an EIO may be refused in the executing State where

or non-

execution.

(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;

(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;

(c) the EIO has been issued in proceedings referred to in

regulation 7(b) and (c) and the investigative measure would not

be authorised under the law of the executing State in a similar

domestic case;

(d) the execution of the EIO would be contrary to the

principle of ne bis in idem;

(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;

(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;

(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

(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)(g) and (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), (e)

and (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

exercise that power.

(1) The decision on the recognition or execution shall be Time limits for

taken and the investigative measure shall be carried out with the same recognition

execution.

celerity and priority as for a similar domestic case and, in any case,

within the time limits provided in this regulation.

(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.

(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

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.

(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.

(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.

(1) The recognition or execution of the EIO may be Grounds for

postponement of

postponed in the executing State where

recognition or

execution.

(a)

its execution might prejudice an on-going criminal

investigation or prosecution, until such time as the executing

State deems reasonable;

(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.

(1) The competent authority in the executing State which Obligation to

receives the EIO shall, without delay, and in any case within a week of inform.

the reception of an 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

executing authority shall inform the issuing authority immediately by

any means

(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;

(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

was issued, in order to enable the issuing authority to take further

action in the specific case; or

(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

executing authority shall inform the issuing authority without delay by

any means capable of producing a written record

(a)

of any decision taken pursuant to regulations 13 or

14;

(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.

When present in the territory of the executing State in the

framework of the application of the regulations, officials from the

issuing State shall be regarded as officials of the executing State with

respect to offences committed against them or by them.

(1) Where, in the framework of the application of these

regulations, officials of a Member State are present in the territory of

another Member State, the former Member State shall be liable for any

damage caused by its officials during their operations, in accordance

with the law of the Member State in whose territory they are operating.

(2) The Member State in whose territory the damage referred

to in sub-regulation (1) was caused shall make good such damage

under the conditions applicable to damage caused by its own officials.

(3) The Member State whose officials have caused damage to

any person in the territory of another Member State shall reimburse in

full any sums the latter Member State has paid to the victims or

persons entitled on their behalf.

(4) Without prejudice to the exercise of its rights vis-à-vis third

parties and with the exception of sub-regulation (3), each Member

State shall refrain in cases referred to in sub-regulation (1) from

requesting reimbursement of damages it has sustained from another

Member State.

(1) All the necessary measures shall be taken to ensure Confidentiality.

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

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 Cap. 9.

apply mutatis mutandis in respect of any breach of confidentiality in

violation of these regulations.

It shall be ensured that personal data are protected and may

only be processed in accordance with the Data Protection Act, and in

particular, with Council Framework Decision 2008/977/JHA and the

principles of the Council of Europe Convention for the protection of

Individuals with regard to the Automatic Processing of Personal Data

of 28 January 1981 and its Additional Protocol.

Access to such data shall be restricted, without prejudice to

the rights of the data subject. Only authorised persons may have access

to such data.

(1) Unless otherwise provided in these regulations, the

executing State shall bear all costs undertaken on the territory of the

executing State 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

(a)

withdraw the EIO in whole or in part; or

(b) keep the EIO, and bear the part of the costs deemed

exceptionally high.

(1) An EIO may be issued for the temporary transfer of a

person in custody in the executing State 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 non-

execution referred to in regulation 14 the execution of the EIO may

also be refused if

(a)

the person in custody does not consent; or

(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 all necessary documents.

(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 the territory of the executing State shall be agreed

between the issuing State and the executing State, 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 the

executing State.

(8) Without prejudice to sub-regulation (6), a transferred

person shall not be prosecuted or detained or subjected to any other

restriction of his personal liberty in the issuing State for acts

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.

(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.

(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.

(1) Where a person is in the territory of the executing

State 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).

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.

(2) In addition to the grounds for non-recognition or non-

execution referred to in regulation 14, execution of an EIO may be also

refused if either

(a)

the suspected or accused person does not consent; or

(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

(a) summon the witness or expert concerned, indicating

the time and the venue of the hearing;

(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

(c)

ensure the identity of the person to be heard.

(4) If in circumstances of a particular case the executing

authority has no access to technical means for a hearing held by video

conference, such means may be made available to it 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

(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

the executing State. If the magistrate is of the view that during

the hearing the fundamental principles of the law of the

executing State are being infringed, it shall immediately take the

necessary measures to ensure that the hearing continues in

accordance with those principles;

(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 the executing State;

(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;

(d) at the request of the issuing State or the person to be

heard, the executing State shall ensure that the person to be heard

is assisted by an interpreter, if necessary;

(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 its territory in accordance with

this regulation and refuses to testify when under an obligation to

testify or does not testify the truth, national law applies in the same

way as if the hearing took place in a national procedure. 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.

(1) If a person is in the territory of one Member State and

has to be heard as a witness or expert by competent authorities of

another Member State, the issuing authority of the latter 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).

(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.

(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 the territory of the executing State, and if so, to

obtain all the details of the identified accounts.

(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 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.

(7) Unless these regulations otherwise provide, the Cap. 9.

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.

(1) An EIO may be issued in order to obtain the details of Information on

specified bank accounts and of banking operations which have been banking

other financial

carried out during a defined period through one or more accounts operations.

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.

(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.

(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

(a) the monitoring of banking or other financial

operations that are being carried out through one or more

specified accounts;

(b) the controlled deliveries on the territory of the

executing State;

its execution may be refused, in addition to the grounds for non-

recognition 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.

(1) An EIO may be issued for the purpose of requesting Covert

the executing State to assist the issuing State in the conduct of investigations.

investigations into crime by officers acting under covert or false

identity ("covert investigations").

(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 the

executing State with due regard to its national law and procedures.

(3) In addition to the grounds for non-recognition and non-

execution referred to in regulation 14, the executing authority may

refuse to execute an EIO as referred to in sub-regulation (1), where

(a) the execution of the covert investigation would not be

authorised in a similar domestic case; or

(b) it was not possible to reach an agreement on the

arrangements for the covert investigations under sub-regulation

(4).

(4) Covert investigations shall take place in accordance with

the national law and procedures of the Member State on the territory of

which the covert investigation takes place. The right to act, to direct

and to control the operation related to the covert investigation shall lie

solely with the competent authorities of the executing State. 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 the executing State with due

regard to their national laws and procedures.

(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 Cap. 9.

this regulation.

(1) An EIO may be issued for the interception of Interception of

telecommunications in the Member State from which technical telecommunica-

tions with

assistance is needed.

technical

assistance of

another Member

(2) Where more than one Member State is in a position to State.

provide the complete necessary technical assistance for the same

interception of telecommunications, the EIO shall be sent only to one

of them. 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

(a) information for the purpose of identifying the subject

of the interception;

(b)

the desired duration of the interception; and

(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 non-

execution 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. The executing State 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

(a) transmitting telecommunications immediately to the

issuing State; or

(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 (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 Cap.

9. shall apply mutatis mutandis to this regulation.

(1) Where, for the purpose of carrying out an Notification of

investigative measure, the interception of telecommunications is the

State where the

authorised by the competent authority of one Member State (the subject

interception is

"intercepting Member State") and the communication address of the located from

subject of the interception specified in the interception order is being which

technical

used on the territory of another Member State (the "notified Member assistance is

needed.

State") from which no technical assistance is required to carry out the

interception, the intercepting Member State shall notify the competent

authority of 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), the competent authority of the intercepting Member State with the

following

(a) that the interception may not be carried out or shall be

terminated; and

(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).

(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 sub-regulation

(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.

(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.

(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

(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;

(b)

Convention implementing the Schengen Agreement;

(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 S.L. 9.13.

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.

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.

(1) Mutual assistance requests received before 22 May Transitional

2017 shall continue to be governed by existing instruments relating to provisions.

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.

In the application of these regulations the provisions of Conflict.

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.

The Freezing Orders (Execution in the European Union) Repeal.

Regulations are hereby repealed.