European Investigation Order

L.N. 451 of 2020

CRIMINAL CODE

(CAP. 9)

European Investigation Order

(Amendment) Regulations, 2020

IN EXERCISE of the powers conferred by articles 628A and

628B of the Criminal Code, the Minister for Justice, Equality and

Governance has made the following regulations:-

The title of these regulations is the European Investigation

Order (Amendment) Regulations, 2020 and these regulations shall be

read and construed as one with the European Investigation Order

Regulations, hereinafter referred to as "the principal regulations".

Regulation 2 of the principal regulations shall be amended

as follows

(a) immediately before the definition "the Charter" there

shall be added the following new definition

" "Certifying

authority"

means

the

Attorney

General;";

(b) in the definition "European Investigation Order"

immediately after the words "to obtain evidence in accordance

with" there shall be added the words "the Directive and";

(c) the definition

"executing authority" shall be

substituted by the following new definition

" "executing authority" means an authority having

competence to recognize an EIO and ensure its execution in

accordance with the Directive, these regulations and the

procedures applicable in a similar domestic case. In the

event that the executing State is Malta, "executing

authority" means a court of criminal jurisdiction and/or the

Police;";

(d)

in the definition "executing State", the word

"executed" shall be substituted by the words "carried out"; and

(e) the definition "issuing authority" shall be substituted

by the following new definition

" "issuing authority" means

(a) a court of criminal jurisdiction, Attorney

General; or Inquiring Magistrate and when the

issuing authority is not Malta includes an

investigating judge or a public prosecutor;

(b) the Police or any other competent

authority in accordance with any law, acting in its

capacity as an investigating authority in criminal

proceedings with the competence to order the

gathering of evidence in accordance with the

applicable law

Provided that the EIO shall be validated

after examination of its conformity with the

requirements for the issuing of an EIO under the

Directive, in particular the conditions established in

sub-regulation (1) of regulation 9, by an authority

mentioned in paragraph (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 (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.".

Regulation 4 of the principal regulations shall be amended Amends

regulation 4 of

the principal

regulations.

(a) sub-regulation (1) thereof shall be substituted by the

following new sub-regulation

"(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."; and

(b) sub-regulation (2) thereof, shall be substituted with

the following

"(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.".

In regulation 5 of the principal regulations, the words "The

EIO shall" shall be substituted by the words "An EIO issued pursuant

to these regulations shall".

Regulation 6 of the principal regulations shall be

substituted by the following new regulation

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.".

6. Regulation 8 of the principal regulations shall be amended

as follows

(a) sub-regulation (3) thereof shall be substituted by the

following new sub-regulation

"(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."; and

(b) sub-regulation (4) thereof shall be substituted by the

following new sub-regulation

"(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.".

Regulation 10 of the principal regulations shall be amended

as follows

(a) sub-regulation (2) thereof shall be substituted by the

following new sub-regulation

"(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.";

(b) sub-regulation (3) thereof shall be substituted by the

following new sub-regulation

"(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.";

(c) in sub-regulation (4) thereof, the words "The issuing

authority may transmit EIOs" shall be substituted by the words

"The Attorney General may transmit in terms of regulation 6";

and

(d) in sub-regulation (7) thereof, the words "All

difficulties" shall be substituted by the words "Any difficulties".

In sub-regulation (2) of regulation 11 of the principal Amends

regulations, the words "executing authority" shall be substituted by the regulation

the principal

words "court of criminal jurisdiction or the Police".

regulations.

Regulation 12 of the principal regulations shall be amended Amends

regulation 12 of

as follows

the principal

regulations.

(a) in sub-regulation (1) thereof, the words "executing

authority" shall be substituted by the words "the court of

criminal jurisdiction or the Police";

(b) in sub-regulation (2) thereof, the words "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." shall

be substituted by the words "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";

(c) immediately after sub-regulation (2) thereof, there

shall be added the following new sub-regulation

"(2A)The Attorney General shall certify that the EIO

was issued by a competent issuing authority in the issuing

State."; and

(d) sub-regulation (3) thereof shall be substituted by the

following new sub-regulation

"(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.".

Regulation 13 of the principal regulations shall be amended

as follows

(a)

in the marginal note thereof, the word "Application"

shall be substituted by the word "Recourse";

(b)

in sub-regulation (1) thereof, the words "an

application" shall be substituted by the words "recourse to";

(c) in sub-regulation (2) thereof, the words "of the

executing State and shall under the authority of these regulations

be available in Malta:" shall be substituted with the words "of

Malta";

(d) in sub-regulation (3) thereof, the word "application"

shall be substituted by the word "recourse"; and

(e) in sub-regulation (5) thereof, the words "under the

law of the executing State" shall be substituted by the words "in

terms of the laws of Malta".

Regulation 19 of the principal regulations shall be amended

as follows

(a) sub-regulation (1) thereof shall be substituted by the

following new sub-regulation

"(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.";

(b) in sub-regulation (2) thereof, the words "the

executing authority" shall be substituted by the words "the court

of criminal jurisdiction or the Police"; and

(c) in sub-regulation (3) thereof, the words "the

executing authority" shall be substituted by the words "the court

of criminal jurisdiction or the Police".

Regulation 20 of the principal regulations shall be

substituted by the following

When present in Malta, in the application of

"Criminal

liability

these regulations, officials from the issuing State shall be

regarding

officials.

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.".

13. Regulation 21 of the principal regulations shall be amended Amends

regulation 21 of

as follows

the principal

regulations.

(a) sub-regulation (1) thereof shall be substituted by the

following new sub-regulation

"(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.";

(b)

sub-regulation (2) thereof shall be deleted;

(c) sub-regulations (3) and (4) thereof shall

be

renumbered as sub-regulations (2) and (3) respectively;

(d) in sub-regulation (2) thereof as renumbered, the

words "the territory of another Member State" shall be

substituted by the word "Malta"; and

(e) in sub-regulation (3) thereof as renumbered, the

words "each Member State" shall be substituted by the words

"the Government".

14. In sub-regulation (1) of regulation 24 of the principal Amends

regulations, the words "on the territory of the executing State" shall be regulation

the principal

substituted by the words "in Malta".

regulations.

15. Regulation 25 of the principal regulations shall be amended Amends

regulation 25 of

as follows

the principal

regulations.

(a) in sub-regulation (1) thereof, the words "in the

executing State" shall be substituted by the words "to Malta or

from Malta to another Member State to which the Directive

applies";

(b) in sub-regulation (4) thereof, the words "all necessary

documents" shall be substituted by the words "the EIO,

document attesting the identity of the person in custody and

identity details of the officers accompanying the person.";

(c) in sub-regulation (5) thereof, the words "the territory

of the executing State shall be agreed between the issuing State

and the executing State" shall be substituted by the words "Malta

shall be agreed between the issuing State and Malta";

(d) in sub-regulation (7) thereof, the words "the

executing State" shall be substituted by the word "Malta"; and

(e) in sub-regulation (8) thereof, the words "a transferred

person" shall be substituted by the words "a person transferred to

Malta".

16. Regulation 27 of the principal regulations shall be amended

as follows

(a) in sub-regulation (1) thereof, the words "the territory

of the executing State" shall be substituted by the word "Malta";

(b) in sub-regulation (4) thereof, the words "executing

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

video conference, such means may be made available to it" shall

be substituted by the words "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";

(c) sub-regulation (5) of the principal regulations shall be

amended as follows

(i) in paragraph (a) thereof, the words "the

executing State" wherever they occur shall be substituted

by the word "Malta" and the word "it" shall be substituted

by the words "the court";

(ii) in paragraph (b) thereof, the words "the

executing State" shall be substituted by the word "Malta";

and

(iii) in paragraph (d) thereof, the words "the

executing State" shall be substituted by the word "Malta";

and

(d) in sub-regulation (7) thereof, the words "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." shall be substituted by the words

"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"..

17. Sub-regulation (1) of regulation 28 of the principal Amends

regulation 28 of

regulations shall be amended as follows

the principal

regulations.

(a) the words "the territory of one Member State" shall

be substituted by the word "Malta"; and

(b)

the word "latter" shall be deleted’.

18. In sub-regulation (1) of regulation 29 of the principal Amends

regulations, the words "the territory of the executing State" shall be regulation

the principal

substituted by the word "Malta".

regulations.

19. In paragraph (b) of sub-regulation (1) of regulation 31 of Amends

the principal regulations, the words "on the territory of the executing regulation

the principal

State" shall be substituted by the words "in Malta".

regulations.

20. Regulation 32 of the principal regulations shall be amended Amends

regulation 32 of

as follows

the principal

regulations.

(a) in sub-regulation (1) thereof, the words "the

executing State" shall be substituted by the word "Malta";

(b) in sub-regulation (2) thereof, the words "the

executing State" shall be substituted by the word "Malta"; and

(c) sub-regulation (4) thereof shall be substituted by the

following new sub-regulation

"(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.".

Regulation 33 of the principal regulations shall be amended Amends

regulation 33 of

as follows

the principal

regulations.

(a) in sub-regulation (1) thereof, the words "the Member

State" shall be substituted by the word "Malta";

(b) sub-regulation (2) shall be substituted by the

following new sub-regulation

"(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."; and

(c) in sub-regulation (5) thereof, the words "The

executing State" shall be substituted by the word "Malta".

Regulation 34 of the principal regulations shall be amended

as follows

(a) in sub-regulation (1) thereof, the words "one Member

State" shall be substituted by the word "Malta"; and

(b) in sub-regulation (3) thereof, the words "The

competent authority of the notified Member States" shall be

substituted by the words "Where (Malta’s competent authority is

the notified competent authority) it".

€0.81