Maltese law allows private individuals to request the opening of a magisterial inquest. This is an investigation conducted by a magistrate in order to preserve the evidence of an alleged crime.

The law regulating these inquests is in constant flux through legislative amendments, with the latest introduced in April 2025. Today, the law on the matter may be summarised as follows.

• When a Private Citizen May Request an Inquest

A private individual may submit a report, information or complaint to the Executive Police together with a request for an inquest, provided that the alleged offence is punishable by imprisonment of not less than three years and that the subject matter of the offence still subsists. The request must be confirmed on oath and must indicate the identity of the suspected person, the act allegedly committed, the offence or offences allegedly committed, and the connection between the act and the offence, together with any available supporting evidence.

• The Roles of the Executive Police and the Attorney General

After receiving a report, information or complaint accompanied by a private person’s request for the opening of an inquest, the Executive Police shall conduct the necessary investigations and determine whether criminal proceedings should be instituted, whether sufficient grounds for prosecution exist, whether further investigation is required, or whether an inquest ought to be opened.

After carrying out their investigation, the Police must refer the case and investigative acts to the Office of the Attorney General, regardless of whether they believe prosecution should proceed. The Attorney General then decides whether criminal proceedings are to be instituted.

If the Attorney General concludes that prosecution should not be initiated, the Attorney General may order the Police to continue investigating, or notify both the complainant and the suspected person that no prosecution will take place.

In the latter case, the complainant has a right to request the Attorney General to reconsider the decision. Moreover, if within two months, the Attorney General confirms the decision not to prosecute, or no reply is given, the complainant may seek judicial review of that decision under the relevant provisions of the Code of Organisation and Civil Procedure.

• The Role of the Criminal Court

If, following the lapse of six months from the filing of the request, no prosecution has taken place, or no decision not to prosecute has been taken or no inquest has actually been opened, the complainant may file an application before the Criminal Court requesting that the Police be ordered to forward the complaint to a Magistrate for the commencement of an inquest.

The Criminal Court must hear the Executive Police, the complainant, the suspected person and any witnesses in camera and, after considering the admissible evidence, may grant further time for investigation, declare the investigation closed, or order the opening of an inquest.

The law provides that an inquest will only be ordered where, on a balance of probabilities, the Court concludes that the alleged offences could have been committed by the suspected person. If an inquest is ordered, the Police must, within three working days, request the Registrar of the Criminal Courts to assign the matter to the duty Magistrate.  

• Nullity and Termination of an Inquest

An inquest conducted without meeting the legal and factual requirements applicable at the time it was opened, may be declared null and without effect.

Within one year from the closure of the inquest and from delivery of a copy of the procés-verbal to the parties, the suspected person may request the Magistrate to determine whether the report, information, or complaint was unfounded, frivolous, vexatious, or abusive. If so, the Magistrate may order the complainant to pay the costs of the inquest, without prejudice to other legal remedies granted to the suspected person.

Such decision is subject to appeal before the Criminal Court within twelve working days from notification to the aggrieved person.

_{The contents of this article are intended for informational purposes only and should not be construed as legal advice on any matter. Neither do they constitute or create a lawyer-client relationship with any reader. Said contents are not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. No responsibility is accepted for any actions taken or not taken on the basis of this publication.}

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Once a criminal offence is committed either the Police or the Attorney General, depending on the nature of the offence committed, has a certain amount of time to issue charges against a particular individual.

If a particular individual is charged in court with a criminal offence of which action is barred by prescription, the court either on the request of the defendant or ex officio will throw out the case and the individual will be acquitted from all the charges brought against him.

However, it is important to point out that once an individual is served with the criminal charges issued against him, the period of prescription in respect of those criminal offences becomes suspended until such time as the definite judgement is delivered.

Article 691 of Chapter 9 of the Laws of Malta (the Criminal Code) provides that the prescription period shall run from the day on when the offence was completed and with regards to attempted offences from the day on which the last act of execution was committed. In the case of continuous offences, the prescription period shall run from the day of the last violation and in regard to continuing offences from the day on which the continuance ceased.

Article 692 of the Maltese Criminal Code further provides that when it comes to criminal offences, the prescription shall not start running if the offender is not known.

Article 688 of Chapter 9 of the Laws of Malta (Criminal Code), provides that criminal action is barred by prescription:

1. By the lapse of 20 years for crimes liable to the punishment of imprisonment for a period not less than 20 years;
2. By the lapse of 15 years for crimes liable to imprisonment for a term of less than 20 but not less than 9 years;
3. By the lapse of 10 years for crimes liable to imprisonment for a term of less than 9 but not less than 4 years;
4. By the lapse of 5 years for crimes liable to imprisonment for a term of less than 4 but not less than 1 years;
5. By the lapse of 2 years for crimes liable to imprisonment for a term of less than 1 year OR to a fine (multa) or for those crimes subject to the punishments established for contraventions;
6. By the lapse of 3 months in respect of contraventions or of verbal insults liable to the punishment established for contraventions.

There are also exceptions to the prescription period provided for in article 688 of the Criminal Code. In such cases, the specific prescription period will be provided for by the law regulating that particular offence.

For example in the case of article 338(z) of the Criminal Code regulating the offence of when an individual fails to pay the alimony fixed by court, the law specifically states that for such offence criminal action is barred by the lapse of 6 months.

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The law on disclosure refers to the duty of the investigative authorities to make available all material evidence which it has at its disposal to the defence before trial in order that the suspect, through legal counsel, may make full answer and defence to the charge.

The right to disclosure is quite a recent development to the right to a fair trial. Such right has been developed by the European Court of Human Rights (ECtHR) as a corollary to fair trial guarantees under Article 6(1) of the European Convention on Human Rights (ECHR) and the more specific requirement under Article 6(3)(b) that everyone charged with a criminal offence must ‘have adequate time and facilities for the preparation of his defence’.

In the judgment Edwards v United Kingdom, delivered on 16 December 1992, the ECtHR stressed that: ‘… it is a requirement of fairness under article 6(1) that the prosecution authorities disclose to the defence all material evidence for or against the accused …’. In another commonly quoted judgement, namely Rowe and Davis v United Kingdom, delivered on 16 February 2000, the ECtHR re-emphasised the principle that there should be equality of arms between the prosecution and the defence. Although not explicitly expressed in the text of Article 6 of the ECHR, this is regarded as no less strong than those principles which are expressly set out therein. In the context of disclosure, this implies that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused.

From a local context, the right of access to the materials of the case, transposed from Directive 2012/13/EU, is provided for under Article 534AF of the Criminal Code. This provision does not provide for the precise moment when such documents should be made available to the supect or to his lawyer. According to the EU Directive itself, such documents must be made available in due time to allow the effective exercise of the right to challenge the lawfulness of the arrest or detention. Each person deprived of his liberty has the immediate right to have his detention reviewed by a judicial authority and logically therefore the materials needed to contest the legality of such detention should be promptly provided to the suspect or his lawyer.

As to what amounts to ‘material evidence’, the Criminal Code does not include a definition and therefore the provision might cause confusion as to what the police should disclose and what they should not. The Directive provides that where a person is arrested or detained at any stage of the criminal proceedings, the investigative authorities must ensure that documents relating to specific cases in the possession of the competent authorities, and which are essential to effectively challenge the lawfulness of the arrest or detention are made available to the arrested person or to their lawyer.

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“When you go to court you are putting your fate into the hands of twelve people who weren’t smart enough to get out of jury duty”, Norm Crosby, an American comedian once said. But is this just a light-hearted statement or a stark look at reality? The jury system has always been a subject of debate. Several jurists have suggested it should be abolished altogether. If the jury were really made up of “twelve [nine – in Malta’s case] people who weren’t smart”, it would not be a system worth retaining. But if it were made up of people who are truly able to recognize their civic responsibility and do their best to pass a fair and impartial verdict, it would be a system doing honour to the administration of justice.

What separates these two scenarios is the jury selection process. It is this process which ultimately decides whether the individuals picked to serve as jurors are “smart” enough – to use Crosby’s colloquial term – to serve the administration of justice fairly and impartially.

In Malta’s case, a jury panel is comprised of a foreman juror and eight common jurors. For one to qualify for jury service he/she must be of age twenty-one years or more and must be a citizen of Malta and residing in Malta. These characteristics are coupled with adequate knowledge of the Maltese language, good character, i.e., a clean criminal record, and competence to serve as a juror. According to the Maltese Criminal Code, a person is not competent to serve as a juror if he is interdicted or incapacitated, is an undischarged bankrupt, is a person who, owing to any notorious physical or mental defect, is reputed to be unfit to serve as a juror, or if he is a person who is under trial for any crime, until the trial has terminated.

In practice, the preparation of jury lists starts off with something that is not provided for legislatively. The Commissioner would issue a memo to all the police districts directed to the Inspectors so that they choose various people who would be deemed fit to serve as jurors. Their suitability would be decided according to the qualifications established by law. Jury lists are prepared by what can be termed as a ‘jury commission’. This commission is made up of the Commissioner of Police, two Magistrates and the Registrar of Courts. The law states that every year in August, these members draw up, according to the best of their knowledge, two lists of persons: one of persons who are qualified and sufficiently competent to serve as jurors for the trial of Maltese speaking persons and one of those persons who have sufficient proficiency in the English language, as to be able to serve for the trial of English-speaking persons. From the entire number of persons shown on the said lists a further list is drawn up containing the names of persons competent to serve as foremen who must have the added qualification of having already served in a trial by jury before the Criminal Court.

After the lists are published in the Government Gazette in August, any person who

possesses the qualifications required by law to serve as a juror and who desires to be registered or to be struck off the list of jurors, may make an application to that effect before the Criminal Court. However, an application to be struck off at this stage is only upheld if one of the qualifications required by law is lacking. The Court proceeds summarily on the application and the registrar notes on the lists any corrections which the court may order.

As for the selection of jurors for a particular trial, every month, the registrar draws from the box forty names of common jurors and ten names of foremen from the sealed boxes. If amongst the names drawn, there are people who are disqualified, ineligible or dead, such names shall be taken as not having been drawn and fresh names are drawn in their place. These persons are then summoned by writ at least four days before the day of the trial. Any person who is not qualified or liable to serve or who has special reasons for asking the court to be exempted may do so by means of an application which has to be filed within four days of the person being summoned and if the court accepts the reasons, it orders the registrar to cancel the name of such persons and to have it replaced by another name.

As to the actual composition of the jury in any given trial, the names of the persons who would have been summoned to serve are to be written on separate ballots of parchment or paper equal in shape and size. The registrar reads aloud in court the

ballots bearing the names of the foremen and then puts them in one box. The same

procedure is followed for the names of ordinary jurors, but the ballots are put into a separate box. The registrar draws first the name of the person to serve as a foreman from the box of names containing the names of prospective foremen and then he shall proceed to draw eight names (or more, depending on whether the court orders the empanelling of supplementary jurors or not). The registrar then asks first the Attorney General or the accused whether they intend or not to challenge the juror. If any person whose name is drawn is challenged, exempted from serving or does not appear, other names will be drawn in the same order, until a foreman and eight ordinary jurors (plus any number of jurors which the court would have ordered to serve as supplementary jurors) are approved.

Under the Maltese system, challenges may either be for cause or peremptory. Challenges for cause may be exercised if there is a reason for wanting the juror removed from the panel. If the court approves the reason, the juror is removed, but if it is rejected, the person is admitted. The number of challenges for cause exercisable by either party is unlimited. In the case of peremptory challenges, however, the number of challenges is limited to three each to the Attorney General and the accused. If the accused are more than three, then each of the accused is allowed two challenges each.

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Several individuals use different typologies and techniques to lauder the proceeds of crime. The below is a non-exhaustive list of red flags which could serve as possible indicators that money laundering activities are taking place.

Whilst it is important to be pointed out that in the case of a red flag, it does not automatically mean that money laundering or terrorism financing activities are taking place, however a more rigorous due diligence must be carried out on that customer.

Some of the most common red flags identified in AML are:

• Cross-Border Money Transfers to Different Accounts to avoid detection from authorities – This could be in the form of rapid transfers to and from different accounts in different countries; funds received from foreign accounts with no clear explanation of its source; payments with no apparent link to a legitimate business.

• Secretive new clients – when new clients avoid meeting in person and when they refuse to answer any questions or even provide false identification details or documentation when carrying out the Know your client (KYC) and customer due diligence (CDD) processes.

• Unusual Payments by clients and unusual source of funds – when payments are inconsistent with the clients profile, such as for example large cash payments, the use of multiple foreign accounts, unexplained payments made by a third party on their behalf, and the use of cryptocurrency.

• Clients holding high positions – typically related to political exposed persons (PEPs) such as head of states, members of parliament, members of the judiciary, senior executives of stated owned corporations. Officials involved in political parties and senior officials appointed by the government, amongst others.

• Unclear Ultimate beneficial ownership – such as when the identity of the individuals owning the company are not clear due to complex ownership structures or the use of shell companies.

• Countries classified as high risk – Clients deriving from countries subject to financial sanctions or else those countries identified by the FATF or by the EU Commission as being suspected to be involved in corruptive practices, having unstable governments or known as tax or money laundering havens.

• Sanctioned customers – when clients are sanctioned by the UN, EU or even nationally. Such customers are to be considered as high risk of money laundering and terrorism financing.

• Adverse media – the clients are subject to adverse media in any part of the world and linked with criminal activities which could be related with possible predicate offences, which are the criminal offences generating the illegal proceeds of crime.

• Suspicious clients activity – when it results that the clients are living a lavish lifestyle which could not be supported with their declared income.

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What is a Magisterial Inquiry?

As the name implies, a Magisterial Inquiry is an investigation carried out by a Magistrate not acting as a court but rather as an impartial officer for justice seeking to delve deeper upon the receipt of any report, information or complaint received by the Police regarding any offense liable to the punishment of imprisonment exceeding three years.

Why is it held?

The primary focus is, if the subject-matter of the offense still exists, the state thereof, with each particular, shall be described, and the instrument, as well as the manner in which such instrument may have produced the effect, shall be indicated.  To any such investigation, an inquest on the spot shall be held.  The inquest shall be held by a magistrate or, in certain cases before the Court of Magistrates (Gozo), by the registrar of that court if no Magistrate can physically be present.

What happens if the Magistrate does not have the necessary skills to carry out the inquest?

Then the Magistrate shall engage the necessary experts to this end and assist in the inquest.  Examples of such experts are scene of the crime officers, DNA experts, computer experts, financial experts.  If it is deemed to be expedient, the Magistrate may empower the experts to receive documents and to examine witnesses on oath and to take down their depositions in writing. Experts employed in the inquest for the purpose of collecting and examining any fingerprints and samples for analysing human DNA are to transmit their findings not only to the Magistrate but also to the Police simultaneously and immediately.  Experts are qualified persons in any art, science or trade who may be competent to ascertain the traces left by the offense, the condition and particulars of the permanent fact, the material means by which probably the offense was committed, the effects produced by the offense, the further effects which the offense might produce, and their probable duration.  The experts shall, in connection with anything forming the subject-matter of their appointment make all such observations and experiments as their art, science or trade may suggest. They shall state the facts on which their observations are based and shall give their opinion by means of a written report.  Report of experts and depositions of witnesses heard by them are to be confirmed under oath by the experts and are to be annexed to the procès-verbal – i.e. the report drawn up by the Investigating Magistrate.

What happens once the procès-verbal is concluded? 

The procès-verbal, if regularly drawn up, shall be received as evidence in the trial of the cause.  The witnesses, experts or other persons who took part or gave evidence during the Magisterial inquest shall be included in the list of witnesses of the Attorney General.  Similarly, all documents and articles exhibited at the inquest and any other material object, in respect of which a procès-verbal has been drawn up, and which can be preserved and conveniently exhibited, shall always be produced at the trial, together with the procès-verbal, by the Attorney General during the trial.

Is there a time-limit for the Magistrate to conclude this investigation?

Where the procès-verbal is not drawn up within sixty days from receiving the report, information, or complaint, the magistrate shall draw up a report stating the reason for the delay, and this report shall be transmitted by the magistrate to the Attorney General not later than three working days from the lapse of the sixty days. At the end of every month after the first report shall have been drawn up, the magistrate shall draw up another report stating again the reason for the delay, and every such subsequent report shall be transmitted by the magistrate to the Attorney General not later than three working days from the lapse of the month.

What rights do victims have during this process?

After the lapse of the period of sixty days, every interested person may by application, request the magistrate to be heard as a witness, or to hear as witnesses the persons indicated in the application. The application shall be served on the Attorney General who may reply within four days.  The Magistrate will then decide whether to accede to such a request or not.

Is the Attorney General kept in the dark until the procès-verbal is concluded?

No. The Magistrate is to communicate to the Attorney General such information about the inquest as may be requested by the Attorney General who moreover shall, always, have access to the record of the proceedings of the inquest and to all documents and material objects exhibited in the course of the inquest including the reports of experts and depositions of witnesses.  Similarly to the Attorney General, the Magistrate prior to the conclusion of the procès-verbal may, upon a request made by the Financial Intelligence Analysis Unit, on a case by case basis and where the information is necessary for the prevention, detection and combating of money laundering, associate predicate offenses and terrorist financing, give access to the record of the proceedings of the inquest and to all documents and material objects exhibited in the course of the inquest, including the reports of the experts and deposition of witnesses, provided that this information shall only be used by the Financial Intelligence Analysis Unit for the purpose for which it was provided.

Does the Magistrate have a limit as to what can be done during this type of an investigation?

No. The truth is priceless, and justice should not have any limits for the truth to be uncovered.

Consider for instance in the case of death. A magistrate may, where necessary, order the dissection and the internal examination of the body.  The magistrate may appoint a medical expert or experts and he may also empower such expert or experts to hear evidence on oath for establishing the identity of the body and to ascertain the cause of death. If the body has been buried, it shall be lawful for the magistrate to order the disinterment thereof with all due precautions, if such disinterment can be affected without prejudice to public health.  It shall be lawful for the magistrate to order the arrest of any person whom, at any inquest, he discovers to be guilty, or against whom there is sufficient circumstantial evidence, as well as to order the seizure of any papers, effects, and other objects generally, which he may think necessary for the discovery of the truth.  It shall also be lawful for the magistrate to order any search into any house, building or enclosure, although belonging to any other person, if he shall have collected evidence leading him to believe that any of the objects identified or referred to during the inquest may be found therein.  It shall also be lawful for the magistrate to order that any suspect be photographed or measured or that his fingerprints be taken or that any part of his body or clothing be examined by experts appointed by him for the purpose.  During such an investigation, the magistrate shall have the same powers and privileges of a presiding magistrate of the Court of Magistrates as court of criminal inquiry.  In collecting evidence in connection with such an inquiry, it shall be lawful for the magistrate to order, if he deems it expedient so to do, that no person shall leave the place where the investigation is being held.  If the door of the place where any inquiry is to take place, is found closed, and no one shall appear to open it, it shall be lawful for the magistrate to order the said door to be forced open.

What happens in practice when the Magisterial Inquiry is concluded?

The record of the inquiry, i.e., the procès-verbal, all annexes and all documents are forthwith transmitted by the magistrate to the Attorney General within the period of three working days upon conclusion.  Where in the procès-verbal the magistrate shall have ordered that a person be arraigned in court on any one or more charges, the magistrate shall order that a copy of the same procès-verbal shall be transmitted by the registrar to the Commissioner of Police who, shall proceed accordingly.  In case of doubt the Commissioner of Police may consult with the Attorney General who may direct that no proceedings are to be taken or that the proceedings to be taken are to be for a charge or for charges different from those specified by the magistrate in the procès-verbal.  Provided that where the Attorney General shall have directed that no proceedings are to be initiated as suggested by the Investigating Magistrate, then the Attorney General shall inform in writing the President of Malta with the reasons as to why such a decision was taken.

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Considerable progress has been made in fighting money laundering and terrorism financing in real-world financial environments, particularly with the introduction of stronger anti-money laundering /counter-terrorism financing (AML/CTF) legislative regimes and increased levels of inter-state co-operation and support. The regulatory framework in Malta, for instance, comprises the Prevention of Money Laundering Act (‘PMLA’) and the Prevention of Money Laundering and Funding of Terrorism Regulations (‘PMLFTR’). These pieces of legislation are in alignment with European Union legislation and lay down the obligations of subject persons (i.e. persons from sectors which are prone to be used for money laundering and funding of terrorism activities).

There are three phases to money laundering: placement, layering and integration. In the placement stage, the funds generated from crime are brought into the financial system. At this point the proceeds of crime emanating from predicate offences, are most apparent and at highest risk of detection. Money launderers ‘place’ the illegally obtained funds using a variety of techniques, which include the deposit of cash into bank accounts and the use of cash to purchase high value assets such as land, property and luxury items. Once the proceeds of crime have been placed into the financial system, there is an attempt to conceal or disguise the source or ownership of the funds by creating complex layers of financial transactions. The purpose of this is to disassociate the illegal funds from the predicate offence by purposefully creating a complex web of financial transactions aimed at concealing any audit trail and the source and ownership of funds. Integration of the ‘cleaned’ money into the economy is the final stage of the process and is accomplished by the money launderer, making it appear to have been legally earned. It is extremely difficult to discern between legal and illegal wealth at the integration stage.

Terrorism financing, on the other hand, occurs when the primary motivation is not financial gain but, rather, the use of funds to “encourage, plan, assist or engage in” acts of terrorism. In terms of sub-article (3) of Article 328B of the Maltese Criminal Code, the crime of funding of terrorism is the process by which a person receives, provides or invites another person to provide, money or other property intending it to be used, or which he has reasonable cause to suspect that it may be used, for the purposes of terrorism. The definition of funding of terrorism, therefore, cares little about the source of the funds (contrary to money laundering), but it is what the funds are to be used for that defines its scope. In fact, the primary distinction between the two crimes lies in the fact that terrorism financing funds can also derive from legitimate sources, not merely criminal acts. In the case of money laundering however, there is always an underlying predicate offence and it therefore always involves an illegal source of funds.

While there can be a number of different motivators and drivers for money laundering and terrorism financing activity, they are inextricably linked. Terrorist groups usually have non-financial goals: publicity, dissemination of an ideology, the destruction of a society or regime and simply spreading terror and intimidation. By contrast, money launderers seek financial profit. The sole purpose and motivation behind money laundering is to give a legal existence to assets emanating from illicit sources.

Therefore, although the two phenomena differ in various ways, they often materialize through the same vulnerabilities of the financial system. Both terrorists and money launderers use anonymity techniques to evade the attention of the authorities and to protect the identity of their sponsors or beneficiaries. However, transactions associated with terrorism financing tend to be carried out in small amounts. That is why, when terrorists raise money from legitimate sources, it becomes very difficult to trace the origin of these funds.

The result obtained however is intrinsically similar, that is both crimes involve an element of reward and satisfaction. Once money passes through the money laundering cycle, the launderer is rewarded with ‘clean’ funds which can be used to such person’s satisfaction. Similarly, the terrorist financers are rewarded with ensuring that the plan they financed is eventually carried out.

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Money Laundering is the process of illegal movement of money to hide its original source.  Subject Persons such as Banks, other financial institutions, gaming platforms, real-estate agencies amongst others could be used by individuals with the aim to launder money deriving from illicit sources.

Anti-Money Laundering (AML) compliance is a process where subject persons carry out background checks and ongoing monitoring on their clients to identify and eliminate suspicious activities which could be related to money laundering. This type of procedure is part of the Know Your Client (KYC) verification and is mandatory for all subject persons as per AML regulations which regulations were implemented to eliminate money laundering and terrorist financing activities.

It is imperative for all subject persons to have in place an effective AML program, for them to protect their business from money laundering activities. An effective AML compliance program should be structured in a manner that it meets AML compliance norms such as internal policies and procedures, training to employees, adequate monitoring on new clients, ongoing monitoring on existent clients, detection of suspicious activities and efficient AML reporting system.

Article 5 of the Prevention of Money Laundering and Funding of Terrorism Regulations (Subsidiary Legislation 373.01) provides that every subject person shall have an effective AML compliance program to define the potential risk of their business including their legal obligations.

Same article further provides that all subject persons, must use a risk-based approach which is that subject persons must understand the money laundering and terrorist financing risk to which they are exposed to and take the appropriate mitigation measures as per the following:

• By identifying money laundering risks relevant to the business.
• By carrying out of a detailed risk assessment of the business focusing on customer behaviour and delivery channels.
• By carrying out risk assessment of customers.
• By designing and to put in place, controls to manage and reduce the impact of the potential risks.
• By monitoring the controls being adopted and to improve their efficiency.
• By keeping records of all measures adopted.

Regulation 5(5) of S.L. 373.01 further provides that subject persons shall:

• Have in place and implement customer due diligence measures, recording keeping procedures and reporting procedures.
• Implement risk management measures.
• Take appropriate and proportionate measures from time to time for the purpose of making employees awareof the measures, policies, controls, and procedures being adopted.
• Appoint, where appropriate and depending on the nature and size of the business, an officer at a managerial level with the aim to monitor and make sure that AML measures, policies, controls, and procedures are being implemented within the business.
• To carry out independent AML audits in order to certify that the business is in line and is implementing correct AML measures.
• Employees to be kept up to date with the recognition and handling of operation and transaction which may be related to proceeds of criminal activities, money laundering or funding of terrorism.
• Monitor and enhance the measures, policies, controls, and procedures adopted to better achieve their intended purpose.

Article 21 of S.L 373.01 which regulates the administrative penalties for subject persons provides that when a subject person is not compliant with the regulations could be subject to a fine amounting to a maximum of five (5) million euro. Hence, “if you think that compliance is expensive: try non-compliance”.

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By means of Directive 2014/41/EU of the European Parliament and the Council dated 3^rd April 2014, as subsequently published in the Official Journal of the European Union on the 1^st May 2014, European Investigation Orders, became possible.

The raison d’être behind EIOs is to ensure a faster and more efficient manner of preservation and transmission of evidence situated in one territory of the Union, when that same evidence is required in another Union member state to be used in criminal trials.

This system, one may opine, has generally improved upon the previous traditional regime of letters rogatory both in terms of speed and in terms of efficiency.

Yet, this tool being only 9 years old, is far from perfect and potentially still must pass from further vetting by the Courts of Justice of the European Union.

The most notable of such tests took place on the 11^th November 2021, in the case C-852/19 as a result of a preliminary ruling request made by the Specialised Criminal Court of Bulgaria in the criminal proceedings brought against Ivan Gavanozov.

The criminal case in Bulgaria against Gavanozov centred around running an organised group and of having committed tax offences. The Bulgarian authorities, in pursuance of their investigation and eventual prosecution, wanted to effect searches and seizures and hear a witness in the Czech Republic on the basis of an EIO.

Gavanozov opined differently.  He claimed that Bulgarian law lacked any legal remedy both against the issuance of the EIO and the lawfulness of searches and seizures/witness hearings and as a result was in breach of his rights.

The Specialised Criminal Court of Bulgaria, referred the matter to the CJEU, asking:

1. whether Article 1(4) and Article 14(1) to (4) of Directive 2014/41, read in the light of recitals 18 and 22 of that directive, and Articles 7 and 47 of the Charter of Fundamental rights of the European Union, read in conjunction with Articles 8 and 13 European Convention on Human Rights, must be interpreted as precluding legislation of a Member State which has issued an EIO that does not provide for any legal remedy against the issuing of an EIO the purpose of which is the carrying out of searches and seizures as well as the hearing of a witness by videoconference?

2. whether Article 1(4) and Article 14(1) to (4) of Directive 2014/41, read in the light of recitals 18 and 22 of that directive, as well as Articles 7 and 47 of the Charter, read in conjunction with Articles 8 and 13 ECHR, must be interpreted as precluding the issuing, by the competent authority of a Member State, of an EIO, the purpose of which is the carrying out of searches and seizures as well as the hearing of a witness by videoconference, where the legislation of that Member State does not provide any legal remedy against the issuing of such an EIO.

The CJEU after having considered all the legal arguments brought forward by the parties and all relevant legisiation, decided by way of reply to each of the questions:

1. Article 14 of Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters, read in conjunction with Article 24(7) of that directive and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding legislation of a Member State which has issued a European investigation order that does not provide for any legal remedy against the issuing of a European investigation order, the purpose of which is the carrying out of searches and seizures as well as the hearing of a witness by videoconference.

2. Article 6 of Directive 2014/41, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union and Article 4(3) of the Treaty on European Union, must be interpreted as precluding the issuing, by the competent authority of a Member State, of a European investigation order, the purpose of which is the carrying out of searches and seizures as well as the hearing of a witness by videoconference, where the legislation of that Member State does not provide any legal remedy against the issuing of such a European investigation order.

The Court in reaching its conclusion followed the Opinion of Advocate General Bobek whereby he concluded in no uncertain terms that all issued acts will, by default, be tainted because the legislation under which they were issued was itself incompatible. He refers to the ECtHR, which repeatedly found that the absence of remedies against investigative measures in Bulgaria, such as searches and seizures, is in breach of the minimum standards of Art. 13 ECHR (the right to an effective remedy).  As long as the Bulgarian legislature does not remedy this situation, Bulgaria is in constant breach of fundamental rights and can therefore not take part in the mutual recognition scheme brought about by the EIO.

The concept of mutual recognition and mutual trust has as a rule the fact that when the executing authority is required to recognise an EIO transmitted in accordance with Directive 2014/41, without any further formality being required, and is to 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 Member State, that authority must be sure that the issuing State complies with the EU’s fundamental rights. This includes the persons’ right to contest the need and/or lawfulness of an EIO and to obtain appropriate redress if an investigative measure has been unlawfully ordered or carried out.

Since the lack of legal remedies against the investigative measures in question and the issuance of an EIO in the current Bulgarian legislation infringes Art. 47(1) of the Charter and also rebuts the presumption of mutual trust, Bulgaria is not able to issue EIOs anymore.

Unfortunately, the situation in Malta does not differ from the situation in Bulgaria!

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