EUROPEAN INVESTIGATION ORDER REGULATION

SUBSIDIARY LEGISLATION 9.25

EUROPEAN INVESTIGATION ORDER

REGULATION

24th October, 2017

LEGAL NOTICE 297 of 2017, as amended by Legal Notices 451 of

2020 and 259 of 2023.

The title of these regulations is the European

Investigation Order Regulations.

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

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

the European Union;

"Certifying authority" means the Attorney General;

"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 the Directive and 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

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;

"executing State" means the Member State of the European

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

carried out;

"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.

"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)

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.

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.

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

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 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.

An EIO may be issued

(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 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

(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)

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.

(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/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

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.

(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.

(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.

(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

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.

(1)

The executing authority shall have, wherever

possible, recourse 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 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 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.

(1)

Without prejudice to regulation 4(3), recognition

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

(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;

EUROPEAN INVESTIGATION ORDER

(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 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.

(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

postponed in the executing State where

(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 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

(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 court

of criminal jurisdiction or the Police 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 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.

(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.

(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

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.

Repealed by Legal Notice 259 of 2023.

(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

(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 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 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 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

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 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).

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.

EUROPEAN INVESTIGATION ORDER

(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 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

(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;

(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;

(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, Malta 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 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.

(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).

(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 Malta, 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

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 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.

(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 in Malta;

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 Malta to assist the issuing State in the conduct of

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 Malta

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)

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.

(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.

(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

(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. 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

(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

shall apply mutatis mutandis to this regulation.

(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

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

(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

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 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.

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.