On the signing of the Extradition Treaty between the Republic of Kazakhstan and Malaysia

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Decree of the President of the Republic of Kazakhstan dated June 11, 2019 No. 68. In accordance with subparagraph 1) of Article 8 of the Law of the Republic of Kazakhstan dated May 30, 2005 "On International Treaties of the Republic of Kazakhstan", I HEREBY DECREE:

1. To approve the attached draft Extradition Treaty between the Republic of Kazakhstan and Malaysia.

2. To authorize the Prosecutor General of the Republic of Kazakhstan, Nurdauletov Gizat Daurenbekovich, to sign an extradition Treaty between the Republic of Kazakhstan and Malaysia on behalf of the Republic of Kazakhstan, authorizing amendments and additions that are not of a fundamental nature.

3. This Decree shall enter into force from the date of signing.

President of the Republic of Kazakhstan

K. Tokaev

Approved by Decree of the President of the Republic of Kazakhstan dated June 11, 2019 No. 68

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AGREEMENT BETWEEN THE REPUBLIC OF KAZAKHSTAN AND MALAYSIA ON EXTRADITION

The Republic of Kazakhstan and the Government of Malaysia, hereinafter referred to individually as the "Party" and collectively as the "Parties",

Desiring to strengthen friendly relations between the two countries, recognizing the need to ensure more effective cooperation between the Parties in the fight against crime, agreed as follows:

ARTICLE 1 OBLIGATIONS OF EXTRADITION

The Parties, in accordance with this Treaty and in accordance with their legislation, shall extradite to each other any person who is wanted by the Requesting Party for criminal prosecution for an extraditable offence or has been convicted in the Requesting Party for an extraditable offence.

ARTICLE 2 EXTRADITABLE OFFENCES

1. An extraditable offence is an offence that is punishable, in accordance with the laws of both Parties, by imprisonment for a term of at least one (1) year or a more severe penalty.

2. If the extradition request concerns a person who has been sentenced to imprisonment by a court of the Requesting Party for an extraditable offence, extradition is granted only if, at the time of receipt of the extradition request, the unserved period is at least six (6) months.

3. For the purposes of this article, it does not matter whether the committed act is a crime in accordance with the legislation of the Parties.:

(a) Whether the offence falls under the same category of offences under the legislation of the Parties, or whether the offence committed is referred to in the same or different terminology; or

(b) Whether the offences differ in accordance with the legislation of the Parties if the totality of the acts or omissions presented by the Requesting Party is recognized as a crime under the legislation of the Requested Party.

4. If extradition is requested for the commission of a crime related to violation of legislation on customs or currency regulation, taxation or control over the turnover of foreign currency, extradition may not be refused on the grounds that the legislation of the Requested Party does not provide for the same taxes and customs duties or does not contain the same rules in the field of customs or currency regulation, taxation or control over the turnover of foreign currency, if the actions or omissions for which extradition is requested, It is a crime under the legislation of the Requested Party.

5. If the crime was committed outside the Requesting Party, extradition is carried out if the legislation of the Requested Party provides for punishment for crimes committed outside its territory under the same circumstances. If the legislation of the Requested Party does not provide for this, the Requested Party may, at its discretion, refuse extradition.

ARTICLE 3 REFUSAL OF EXTRADITION

1. The extradition is not carried out on the basis of any of the following circumstances:

(a) If the Requested Party believes that the offences for which extradition is requested are crimes of a political nature that do not include:

i) murder or other intentional crime against the person of the Head of State or a member of his family;

i) a crime in respect of which the Parties have international obligations in accordance with a multilateral international treaty to which the Parties are parties to extradite the wanted person or transfer the case for criminal prosecution; and

(iii) Preparation, attempt, organization, incitement to commit, aiding or conspiring to commit the crimes referred to in subparagraphs (i) and (ii) of this paragraph;

(b) If the Requested Party has reasonable grounds to believe that the extradition request is being submitted for the purpose of charging or punishing the wanted person for reasons of race, ethnic origin, religion, gender, nationality or political beliefs, or the person may be harmed for any of these reasons.;

(c) If the offence for which extradition is requested is a military offence under the legislation of the Requested Party, which has no analogy in the ordinary criminal law of the Requested Party.;

(d) If, in relation to the offence for which extradition is requested,:

(i) The person has been acquitted, pardoned, or the criminal prosecution against him has been discontinued in the Requested Party;

(ii) The person has been convicted in the Requested Party;

(iii) The person has served his sentence in the Requested Party;

e) if it contradicts the legislation of the Requested Party or the obligations of the Requested Party arising from international treaties;

(f) If, at the time of receipt of the request for extradition of the person for the offence for which extradition is requested, criminal prosecution or serving of the sentence cannot be carried out due to the expiration of the statute of limitations or for any other legitimate reason provided for by the legislation of the Requested Party. The period during which the person whose extradition is requested evades justice is not counted in the statute of limitations for criminal prosecution.

2. If, in accordance with the legislation of the Requesting Party, the death penalty is provided for the crime for which extradition is requested, the extradition request cannot be sent without prior consultation and consent of both Parties to send the request.

3. Extradition may be refused in accordance with this Agreement in any of the following circumstances:

(a) If the person whose extradition is requested is a national of the Requested Party;

(b) When the offence for which extradition is requested is considered to fall under the jurisdiction of the Requested Party;

(c) When the Requested Party considers that extradition may prejudice its sovereignty, national security, public order or other essential State interests.;

(d) If the person whose extradition is being sought is being prosecuted in the Requested Party.

4. In case of refusal of extradition in accordance with sub-paragraphs (a) or (b) of paragraph 3 of this Article, the Requested Party, at the request of the Requesting Party, submits the case file to its competent authorities for consideration with a view to prosecuting the requested person in accordance with its legislation.

ARTICLE 4 TIMELY EXTRADITION OR POSTPONEMENT OF EXTRADITION

1. The requested Party may delay the extradition of a person in order to bring him to criminal responsibility or serve his sentence for a crime other than the one for which extradition is requested. In such a case, the Requested Party shall notify the Requesting Party accordingly.

2. If a person is serving a sentence in the territory of the Requested Party for a crime other than the one for which extradition is requested, the Requested Party may temporarily extradite that person to the Requesting Party in order to prosecute the crime for which extradition was requested. A person who has been temporarily extradited must be held in custody by the Requesting Party and returned to the Requested Party upon completion of criminal proceedings against that person in accordance with written conditions established by mutual agreement of the Parties.

ARTICLE 5 CENTRAL AUTHORITIES

1. For the purposes of this Agreement, the central authorities are:

for the Republic of Kazakhstan - the Prosecutor General's Office of the Republic of Kazakhstan;

For Malaysia, the Ministry of the Interior of Malaysia.

2. In the event of a change in the names of their central bodies or the transfer of their functions to other State bodies, the Parties shall notify each other through diplomatic channels.

ARTICLE 6 PROCEDURE OF ISSUE AND NECESSARY DOCUMENTS

1. A request for the extradition of a person shall be made in writing and sent through diplomatic channels.

Subsequent relations are carried out through the central authorities directly or through diplomatic channels.

2. The request for the extradition of a person must contain:

a) information identifying the identity and nationality of the wanted person, including, if possible, photographs, fingerprints and information about the last location of the wanted person, if known;

(b) A statement of the factual circumstances of the crime;

(d) Information on the applicable statute of limitations.

3. If a person is wanted for criminal prosecution for an extraditable offence, the extradition request must contain a copy of the arrest warrant and a copy of the document describing the act, if available.

4. If a person has been convicted and a punishment has been imposed on him, the extradition request must contain:

a) a certified copy of the conviction and a document confirming its entry into force;

(b) Information on the date of commencement of the sentence; and

5. Neither Party may require, as a condition of extradition under this Agreement, that the other Party confirm evidence in the case against the wanted person.

ARTICLE 7 ADDITIONAL INFORMATION

1. If the Requested Party considers that the information provided in the extradition request is insufficient, in accordance with this Treaty, to satisfy the extradition request, that Party may request additional information. The Requested Party may set a time limit for the provision of such information and may extend it if the Requesting Party provides justification for the reasons for such extension.

2. If the person whose extradition is requested is in custody and the additional information provided is insufficient in accordance with this Agreement or has not been received within the agreed time period, the person may be released from custody. However, such release should not prevent the person from being re-arrested and extradited if additional information is subsequently obtained.

3. If a person is released from custody in accordance with paragraph 2 of this Article, the Requested Party must inform the Requesting Party as soon as possible.

ARTICLE 8TRANSLATION

All documents submitted by the Parties must be translated into English.

ARTICLE 9THE VERIFICATION OF DOCUMENTS

1. The documents accompanying the extradition request in accordance with Article 6 of this Treaty must be admitted as evidence if they are certified by the Requesting Party.

2. The document is considered certified for the purposes of this Agreement if:

(a) Signed or certified by a judge or other competent person of the Requesting Party; and

b) for the Republic of Kazakhstan, it is stamped with the stamp of the Prosecutor General's Office of the Republic of Kazakhstan, and for Malaysia, it is stamped with the stamp of the Ministry of Internal Affairs of Malaysia; or

ARTICLE 10 TEMPORARY ARREST

1. In urgent cases, the interested Party may request temporary arrest of the wanted person before submitting an extradition request.

2. A request for temporary arrest shall be made in writing and transmitted directly through the central authorities of the Parties.

3. The request for temporary arrest must contain the following:

a) a description of the wanted person, including, if possible, fingerprints and photographs;

b) if known, the last location of the wanted person;

(d) A brief description of the facts of the criminal case, including a description of the alleged acts constituting each crime, and, if possible, the time and place of each crime;

e) if a person is requested for the purpose of criminal prosecution, an arrest warrant or a copy of a document describing the act, if available;

f) if a person is requested for the purpose of executing a sentence, a copy of the conviction;

(g) A description of the punishment that may be or has been imposed for the commission of the offence; and

h) a guarantee of the subsequent sending of a request for the extradition of a person.

4. Upon receiving a request for temporary arrest, the Requested Party must take the necessary measures to arrest the wanted person and immediately notify the Requesting Party of the results.

5. The arrested person may be released if the Requesting Party fails to provide the necessary documents specified in Article 6 of this Treaty within forty (40) days from the date of arrest.

6. The release of a person in accordance with paragraph 5 of this article should not prevent the consideration of a request for the extradition of a wanted person, if the request is subsequently received.

ARTICLE 11 SIMPLIFIED EXTRADITION

1. If the wanted person agrees to return to the Requesting Party and, after personal consultation with an official representative of the competent or judicial authority on the consequences of such consent, confirms his consent to return, the Requested Party may extradite the person without further proceedings in accordance with its legislation.

2. The transfer of a person in accordance with paragraph 1 of this article is carried out in accordance with articles 13 and 14 of this Treaty, subject to the provisions of articles 15 and 16 of this Treaty.

ARTICLE 12CONCURING REQUESTS

1. If the Requested Party receives a request from several States for the extradition of the same person for the same or for different crimes, the Requested Party determines which State the person will be extradited to and notifies these States of its decision.

2. When making a decision, the Requested Party must take into account all factors, including the following:

a) whether the requests were made in accordance with an international agreement;

b) the nationality of the wanted person;

(d) The order in which requests for the extradition of a person have been submitted by the requesting States;

(e) Interests of the requesting States;

(f) The possibility of further extradition between requesting States;

(g) The time and place of each crime.

ARTICLE 13 DECISIONS ON EXTRADITION REQUEST AND TRANSFER OF A PERSON

1. As soon as the decision on the request has been made, the Requested Party is obliged to inform the Requesting Party about the decision.

2. If the request has been refused in whole or in part, the Requested Party must provide written reasons for the refusal. Upon request, the Requested Party may provide copies of the relevant court decisions relevant to the case.

3. The Parties shall agree on the date and place of transfer of the wanted person to the competent authorities of the Requesting Party in the territory of the Requested Party.

4. If the wanted person has not been removed from the territory of the Requested Party within the time period established by the legislation of the Requested Party, the person may be released from custody and subsequently the Requested Party may refuse extradition for the same crime.

5. If force majeure prevents the Parties from transferring or removing the extradited person, the other Party shall be notified. In this case, the Parties shall agree on a new date for the transfer of the person, for which the provisions of paragraph 3 of this article apply.

ARTICLE 14 WITHDRAWAL AND TRANSFER OF PROPERTY

1. To the extent permitted by its legislation, the Requested Party may seize and transfer to the Requesting Party any property in the possession of the wanted person at the time of his detention that can be used as evidence of the commission of the crime for which the extradition of the person is requested.

2. Subject to paragraph 1 of this Article, property may be transferred at the request of the Requesting Party, even if the transfer of the wanted person cannot be carried out due to his death or escape.

3. The Requested Party may condition the transfer of property after receiving the assurance of the Requesting Party that the property will be returned to the Requested Party as soon as possible. The requested Party may also postpone the transfer of property if it is required as evidence in other proceedings in the Requested Party.

4. In applying this article, any rights of the Requesting Party or third parties with respect to the transferred property shall be duly taken into account.

5. The costs of returning any transferred property shall be borne by the Requesting Party.

ARTICLE 15 SPECIAL RULE

1. A person extradited under this Treaty may not be detained, arrested, charged, convicted or subjected to any other restriction of his or her personal freedom in the territory of the Requesting Party, except for:

a) the crime for which the extradition of the person is granted;

(b) A less serious crime based on the same facts for which extradition was granted;

2. Paragraph 1 of this Article shall not apply if the person had the opportunity to leave the territory of the Requesting Party and did not do so within forty-five (45) days from the date of final release for the crime for which extradition was granted, or the person, having left the territory of the Requesting Party after his extradition, voluntarily returned back.

ARTICLE 16TRANSFER TO A THIRD STATE

1. Without the consent of the Requested Party, a person extradited in accordance with this Treaty may not be extradited by the Requesting Party to a third State or an international tribunal established in accordance with a multilateral international convention for the prosecution or execution of a sentence for any crime committed prior to his extradition, and without the consent of another interested State, if required in accordance with with such a Convention.

2. Paragraph 1 of this article does not apply if:

(a) That person leaves the territory of the Requesting Party after extradition and returns voluntarily; or

(b) This person, having the opportunity to leave the territory of the Requesting Party, has not done so within forty-five (45) days.

ARTICLE 17TRANSIT

1. To the extent permitted by the legislation of the Parties, either Party may allow the other Party to transit through its territory a person transferred to the other Party by a third State.

2. The request for transit is sent through the central authorities of the Parties. The transit request must contain the personal data of the person being transported, information about his nationality and a summary of the circumstances of the cases, accompanied by a copy of the document authorizing the extradition of the person.

ARTICLE 18 REPRESENTATION AND EXPENSES

1. The Requested Party shall advise, assist, act in court on behalf of the Requesting Party and represent the interests of the Requesting Party, or take the necessary measures to represent the Requesting Party during any judicial proceedings arising in connection with the consideration of the extradition request.

2. The requesting Party shall bear the costs associated with the written and oral translation and copying of documents accompanying the relevant request, and the transportation of the transferred person. The requested Party shall bear other costs incurred in its territory for reasons of the extradition procedure, including costs incurred in its territory in connection with the arrest and detention of the person whose extradition is requested, until the person is handed over to the Requesting Party. The costs associated with the implementation of this Agreement shall be borne by the Parties in accordance with their national legislation.

3. Notwithstanding paragraph 2 of this Article, in the event of expenses incurred in the Requested Party related to the request and of a significant or extraordinary nature, the Parties shall consult in order to determine how the costs will be covered.

4. Neither Party shall make monetary claims to the other Party arising from the implementation of this Agreement.

ARTICLE 19CONSULTATIONS

1. In order to make more effective use of this Agreement, the Parties shall consult on the interpretation, application or implementation of this Agreement as a whole or on a specific criminal case.

2. The Parties may develop practical measures that may be necessary to facilitate the implementation of this Agreement.

ARTICLE 20

RELATIONSHIP WITH OTHER INTERNATIONAL TREATIES

This Treaty does not prevent the Parties from cooperating with each other on extradition issues in accordance with other international treaties to which they are parties.

ARTICLE 21 DISPUTE SETTLEMENT

Any disputes or disagreements between the Parties related to the interpretation or application of the provisions of this Treaty must be resolved through consultations or negotiations between the Parties through diplomatic channels without reference to any third party or an international tribunal.

ARTICLE 22 AMENDMENTS AND ADDITIONS

Amendments and additions may be made to this Agreement by mutual agreement of the Parties, which are formalized by separate protocols, which are its integral parts and enter into force in accordance with the procedure established by Article 23 of this Agreement.

ARTICLE 23 ENTRY INTO FORCE

1. This Treaty shall enter into force within thirty (30) days from the date of receipt, through diplomatic channels, of the last written notification by the Parties that the internal procedures necessary for its entry into force have been completed.

2. This Treaty applies to requests for the extradition of a person submitted after the date of its entry into force, even if the crimes related to the extradition request were committed before that date.

ARTICLE 24 TERMINATION

1. Each of the Parties has the right to terminate this Agreement by sending a written notification to the other Party through diplomatic channels of its intention to terminate it.

2. This Agreement shall terminate upon the expiration of one hundred and eighty (180) days from the date of receipt of such notification by one of the Parties through diplomatic channels.

3. The termination of this Agreement does not prevent the completion of measures or procedures for the extradition of persons that were initiated during the period of its validity.

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto, have signed this Agreement.

Committed in ___________ ______ ____________ 201 __ in two copies, each in Kazakh, Malay and English, all texts being authentic.

In case of disagreement in the interpretation of the provisions of this Agreement, the Parties shall refer to the English text.

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FOR THE REPUBLIC OF KAZAKHSTAN

FOR THE GOVERNMENT OF MALAYSIA

President

Republic of Kazakhstan

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