Art. 649 — CRIMINAL CODE

(1) Where the Attorney General communicates to a

magistrate a request made by a judicial, prosecuting or

administrative authority of any place outside Malta or by an

international court for the examination of any witness present in

M a l t a , o r f o r an y i n v e s t i g a t i o n , se a r c h o r / a n d s e i z u r e , t h e

magistrate shall examine on oath the said witness on the

inter ro ga to ries f or wa rd ed by th e sa id a u tho rit y o r co urt or

otherwise, and shall take down the testimony in writing, or shall

conduct the requested investigation, or order the search or/and

seizure as requested, as the case may be. The order for search or/

and seizure shall be executed by the Police. The magistrate shall

comply with the formalities and procedures indicated in the request

of the foreign authority unless these are contrary to the public

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, and in

a c c o r d a n c e w i t h , a n y t r e a t y, c o n v e n t i o n , a g r e e m e n t o r

understanding between Malta and the country, or between Malta

and the court, from which the request emanates or which applies to

both such countries or to which both such countries are a party or

which applies to Malta and the said court or to which both Malta

and the said court are a party. A declaration made by or under the

authority of the Attorney General confirming that the request is

made pursuant to, and in accordance with, such treaty, convention,

agreement or understanding which makes provision for mutual

assistance in criminal matters shall be conclusive evidence of the

matters contained in that certificate. In the absence of such treaty,

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 place

outside Malta for the examination of any witness present in Malta,

touching an offence cognizable by the courts of that place, the

magistrate shall examine on oath the said witness on the

interrogatories forwarded by the 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 the

result of the investigation conducted, or the documents or things

found or seized in execution of any order for search or/and seizure,

to the Attorney General.

(5) For the purposes of sub-articles (1) and (3) the magistrate

shall, as nearly as may be, conduct the proceedings as if they were

an inquiry relating to the in genere but shall comply with the

CRIMINAL CODE

formalities and procedures indicated by the requesting foreign

authority unless they are contrary to the fundamental principles 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 of

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

arrest any person, for the purpose of giving effect to an order made

or given under article 554(2), or upon reasonable suspicion that

such person has committed an offence, unless the facts amounting

to the offence which such person is accused or suspected to have

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 indicated

by the requesting foreign authority, the requesting authority shall

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 nearly 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 hearing

of a witness or expert by video-conference, the provisions of sub-

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

faci liti es app ointed for the p urpo se b y th e magistrate. The

magistrate shall give effect to any measures for the protection of

the person to be heard which the Attorney General may declare to

have been agreed upon with the requesting 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 present shall ensure that the person to

be heard is identified and that the proceedings take place and

continue at all times in conformity with the fundamental principles

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 under

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-article (7), the magistrate shall on the

conclusion of the hearing 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 participating in the hearing, any

oaths taken and the technical conditions under which the hearing

took place. The document containing the record of the minutes

shall be transmitted to the Attorney General to be forwarded to the

requesting foreign authority.

(11) The following shall mutatis mutandis apply to the person to

be heard under the provisions 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

before the foreign authority shall be deemed to be

proceedings taking place in Malta 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 to which it would have been

liable had the same fact taken 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 evidence and procedure which would

apply to the testimony of a person accused in criminal proceedings

in Malta would also apply to the testimony of the person accused 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 conference: provided

that the witness or expert consents to the hearing.

(14) Where the Attorney General has made a declaration as

provided in sub-article (2), foreign officials designated by the

foreign authority or international court which made the request

shall be entitled to be present for the examination of witnesses or

when investigative measures are being taken.

Sub-title II

O F E XPERTS

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