Criminal Code (Cap. 9), article 649

649. (1) Where the Attorney General communicates to a magistrate a request made by a judicial, prosecuting or administrative authority of an y place outside Malta or by an international court for the exam ination of any witness present in Malta, or for any investigati on, search or/a nd seizure, the magistrate shall examine on oath the said witness on the interrogatories forwarded by the said authority or court or otherwise, and shall take down the testimony in writing, or sha ll conduct the requested investiga tion, or order the search or/and seizure as requested, as the cas e may be. The order for search or/ and seizure shall be executed by the Police. The magistrate sha ll comply with the formalities and procedures indicated in the req uest of the foreign authority unless these are contrary to the publi c policy or the internal public law of Malta. (2) The provisions of sub-article (1) shall only apply where the request by the foreign judicial, prosecuting or administrative authority or by the international court is made pursuant to, an d in accordance with, any treaty, convention, agreement or understanding between Malta and the country, or between Malta and the court, from which the re quest emanates or which applies to both such countries or to which b oth such countries are a party or which applies to Malta and the said court or to which both Malt a and the said court are a party. A declaration made by or under the authority of the Attorney General confirming that the request i s made pursuant to, and in accordan ce with, such treaty, conventi on, agreement or underst anding which makes provision for mutual assistance in criminal matters shall be conclusive evidence of the matters contained in that certifi cate. In the absence of such t reaty, convention, agreement or understanding the provisions of sub- article (3) shall be applicable. (3) Where the Minister responsible for justice communicates to a magistrate a request made by the judicial authority of any pl ace outside Malta for the examinatio n of any witness present in Mal ta, touching an offence cognizable b y the courts of that place, the magistrate shall examine on oath the said witness on the interrogatories forwarded by th e said authority or otherwise, notwithstanding that the accused be not present, and shall take down such testimony in writing. (4) The magistrate shall transmit the deposition so taken, or th e result of the investigation con ducted, or the documents or thin gs found or seized in execution of any order for search or/and sei zure, to the Attorney General. (5) For the purposes of sub-articles (1) and (3) the magistrate shall, as nearly as may be, cond uct the proceedings as if they were an inquiry relating to the in genere but shall comply with the formalities and procedures indicated by the requesting foreign authority unless they are contrary to the fundamental principle s of Maltese law and shall have the same powers, or as nearly as may be, as are by law vested in the Court of Magistrates as court o f criminal inquiry, as well as the powers, or as nearly as may be , as are by law conferred upon him in connection with an inquiry relating to the " in genere ": provided that a magistrate may not CRIMINAL CODE [CAP. 9. 401 arrest any person, for the purpos e of giving effect to an order made or given under article 554(2), or upon reasonable suspicion tha t such person has committed an off ence, unless the facts amountin g to the offence which such person is accused or suspected to hav e committed amount also to an offence which may be prosecuted in Malta. (5A) If the request cannot, or cannot fully, be executed in accordance with the formalities, procedures or deadlines indica ted by the requesting foreign authority, the requesting authority s hall be informed indicating the estimated time within which or the conditions under which execution of the request may be possible . (5B) The proceedings referred to in this article shall, as nearl y as may be, be conducted as if they were an inquiry relating to the "in genere ". (6) Where the request of the foreign authority is for the hearin g of a witness or expert by video-conference, the provisions of s ub- articles (7) to (12), both inclusive, shall apply. (7) The magistrate shall summon the person to be heard to appear at the time and place equipped with video-conference facilities appointed for the purpose by the magistrate. The magistrate shall give effect to any measures for the protection of the person to be heard which the Attorney General may declare t o have been agreed upon with the r equesting foreign authority. (8) The magistrate shall conduct the hearing and where necessary the magistrate shall appoint an interpreter to assist during the hearing. The magistrate pres ent shall ensure that the perso n to be heard is identified and that the proceedings take place and continue at all times in conformity with the fundamental princi ples of the law of Malta. (9) The person to be heard may claim the right not to testify which would accrue to him or her under the law of Malta or unde r the law of the country of the requesting foreign authority. (10) Subject to any measures for the protection of the person to be heard referred to in sub-arti cle (7), the magistrate shall o n the conclusion of the hearing draw up minutes indicating the date a nd place of the hearing, the identity of the person heard, the ide ntities and functions of all other persons participating in the hearing , any oaths taken and the technical conditions under which the hearin g took place. The document containing the record of the minutes shall be transmitted to the Atto rney General to be forwarded to the requesting foreign authority. (11) The following shall mutatis mutandis apply to the person to be heard under the provis ions of sub-article (6): (a) the provisions of article 522, where the person to be heard refuses to testify when required to do so by the magistrate; (b) the provisions of articles 104, 105, 107, 108 and 109, as the case may be, where the person to be heard does not testify to the truth, for this purpose the proceedings 402 CAP . 9.] CRIMINAL CODE before the foreign authority shall be deemed to be proceedings taking place in M alta and the person to be heard shall be deemed to be a person testifying in those proceedings. For the purpose of determining the applicable punishment as may be necessary in proceedings for perjury under this sub-article the criminal fact being inquired into or adjudicated by the requesting foreign authority shall be deemed to be liable to the punishment t o which it would have been liable had the same fact tak en place in Malta or within the jurisdiction of the same Maltese criminal courts. (12) The provisions of sub-articles (6) to (11), both inclusive, shall apply where the person to be heard is a person accused in the country of the requesting foreign authority provided that the hearing shall only take place with the consent of the person to be heard and that all the rules of e vidence and procedure which wo uld apply to the testimony of a per son accused in criminal proceedi ngs in Malta would also apply to the testimony of the person accuse d to be heard under this article. (13) The provisions of this article shall also apply mutatis mutandis where the request of the foreign authority is for the hearing of a witness or expert by telephone conf erence: provide d that the witness or expert consents to the hearing. (14) Where the Attorney Gener al has made a declaration as provided in sub-article (2), foreign officials designated by th e foreign authority or international court which made the request shall be entitled to be present for the examination of witnesse s or when investigative measures are being taken. Added by: XI.1900.90. Sub-title II OF EXPERTS Reference to experts. Added by: XI.1900.90. Amended by: XXX.1934.22; L.N. 4 of 1963; XXXI.1966.2; III.1971.19; VIII.1990.3; XXXII.1997.3; XIII.2005.5.