On the signing of the Agreement between the Republic of Kazakhstan and the Republic of Korea on the transfer of Convicted persons
Decree of the President of the Republic of Kazakhstan dated April 17, 2019 No. 24.
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 Agreement between the Republic of Kazakhstan and the Republic of Korea on the transfer of convicted persons.
2. To authorize the Prosecutor General of the Republic of Kazakhstan, Nurdauletov Gizat Daurenbekovich, to sign on behalf of the Republic of Kazakhstan an agreement between the Republic of Kazakhstan and the Republic of Korea on the transfer of convicted persons, 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 April 17, 2019 No. 24
Project
AGREEMENT BETWEEN THE REPUBLIC OF KAZAKHSTAN AND THE REPUBLIC OF KOREA ON THE TRANSFER OF CONVICTED PERSONS
The Republic of Kazakhstan and the Republic of Korea (hereinafter referred to as the "Parties"),
Desiring to cooperate fully in the transfer of convicted persons, enabling such persons to serve their sentences of imprisonment, detention and any other form of deprivation of liberty in the State of which they are citizens, thereby contributing to their safe reintegration into society,
We have agreed on the following:
ARTICLE 1 DEFINITIONS
For the purposes of this Agreement:
(a) "Transferring Party" means the Party from whose territory the convicted person may be or has been transferred;
(b) "Receiving Party" means the Party to whose territory the convicted person may be or has been transferred;
(c) "Sentence" means any punishment or measure imposed by the court of the transferring Party, involving imprisonment for a specified period of time or life imprisonment for the crime committed.
ARTICLE 2 GENERAL PRINCIPLES
1. The Parties shall cooperate with each other in the transfer of convicted persons in accordance with the provisions of this Treaty.
2. A convicted person in the territory of the transferring Party may be transferred to the receiving Party in accordance with the provisions of this Agreement for the purpose of further serving the sentence imposed on him.
3. The transfer of convicted persons is requested by both the transmitting and receiving Parties.
ARTICLE 3 CENTRAL AUTHORITIES
1. In order to implement the provisions of this Agreement, each Party appoints a central authority.
2. The central body of the Republic of Kazakhstan is the Prosecutor General's Office. The central authority of the Republic of Korea is the Ministry of Justice. Either Party may change its central authority and in such cases it shall immediately inform the other Party of the change through diplomatic channels.
3. The Parties shall use diplomatic channels to communicate with each other, except in urgent cases or other exceptional circumstances.
ARTICLE 4 CONDITIONS OF TRANSFER
1. The transfer of a convicted person is carried out only under the following conditions::
a) the actions or omissions for which punishment has been imposed constitute a crime in accordance with the legislation of the receiving Party; however, this condition does not mean that the crime described in the legislation of both Parties must be identical in relation to issues that do not significantly affect the nature of the crime.;
b) the convicted person is a citizen of the receiving Party;
c) at the time of receipt of the transfer request, the convicted person's sentence must be at least one year or he is serving an indefinite or life sentence.;
(d) The verdict is final and there are no further pending criminal proceedings within the jurisdiction of the transferring Party.;
(e) The transmitting and receiving Parties agree to the transfer; and
f) the convicted person has given written consent to the transfer or consent has been given by his legal representative, if one of the Parties considers this necessary due to the age, physical or mental condition of the convicted person.
2. In exceptional cases, the Parties may agree to transfer, even if the term to be served by the convicted person is less than that specified in subparagraph (c) of paragraph 1 of this article.
ARTICLE 5CONFIRMATION OF CONSENT
1. Each of the Parties shall ensure that the convicted person who consents to transfer in accordance with subparagraph (f) of paragraph 1 of Article 4 of this Treaty does so voluntarily and with full awareness of its consequences.
2. The transferring Party shall allow the official appointed by the receiving Party to personally verify before the transfer that the consent of the convicted person provided for in subparagraph (f) of paragraph 1 of Article 4 of this Treaty is given voluntarily and with full awareness of its consequences.
ARTICLE 6THE CONSEQUENCES OF THE TRANSFER FOR THE TRANSFERRING PARTY
1. The execution of the punishment of the convicted person in the transmitting Party is suspended after its transfer to the receiving Party.
2. The transmitting Party no longer carries out the punishment if the receiving Party considers the execution of the punishment completed and informs the transmitting Party about it.
ARTICLE 7 PROCEDURE OF TRANSFER
1. Each Party shall inform the convicted persons to whom this Agreement may be applied of the existence and content of this Agreement.
2. A convicted person may express his desire to be transferred to any Party, which informs the other Party in writing.
3. The requested Party shall immediately inform the other Party of its decision on the transfer request.
4. Transfer requests are sent in writing and contain the following information:
a) the name, surname, date and place of birth of the convicted person;
(b) An official document confirming the nationality of the convicted person; and (c) the location and permanent residence of the convicted person, if possible.
5. Upon receipt of a transfer request, the transmitting Party shall, as far as practicable, send the following information in writing to the receiving Party:
a) an official document regarding the facts on which the charge and sentence were based;
b) a copy of the relevant law, which proves that the actions or omissions for which punishment has been imposed on the transferring Party constitute a crime;
(c) The nature and duration of the pre-trial arrest, the duration of the sentence, the date of completion of the sentence and, if possible, the period of time served by the convicted person, and any mitigation of punishment due to the proper performance of correctional labor, good behavior or other reasons; and
d) a copy of the court's decision on detention or sentence.
6. As far as possible, either Party shall provide the other Party, at the request of the latter, with any additional information, documents or statements before considering the transfer request or deciding on the transfer. In this case, the receiving Party shall consult with the transferring Party on its intention to adapt the verdict in accordance with paragraph 3 of Article 8 of this Treaty.
7. The transfer of a convicted person by the authorities of the transferring Party to the authorities of the receiving Party shall be carried out on the territory of the transferring Party on the day and place agreed by both Parties.
8. The Parties shall inform the convicted person in writing of each action taken by the transferring Party or the receiving Party in accordance with the preceding paragraphs of this Article.
ARTICLE 8THE LONGEST EXECUTION OF THE SENTENCE
1. The receiving Party executes the sentence as if the sentence had been imposed in the receiving Party, or adapts the sentence under the conditions established by paragraph 3 of this Article.
2. The further execution of the sentence after the transfer is carried out in accordance with the legislation and procedures of the receiving Party, including the conditions for serving the sentence in prison, detention or other type of imprisonment, and those conditions that provide for a reduction in the term of imprisonment or other type of imprisonment by conditional release or other additional measures.
3. If the punishment is incompatible in nature and duration with the legislation of the receiving Party, that Party may adapt it to the punishment provided for in its own legislation for a similar crime. An adapted punishment cannot be more severe in nature and duration than that imposed by the transmitting Party.
4. The receiving Party modifies or cancels the execution of the sentence as soon as it is informed of any decision by the transferring Party to pardon the convicted person or of any other decision or measure by the transferring Party that leads to the cancellation or commutation of the sentence.
5. At the request of the transmitting Party, the receiving Party must provide any information about the execution of the sentence. Either Party has the right at any time to request a special report on the status of execution of a particular sentence.
ARTICLE 9 PRESERVATION OF JURISDICTION
The transferring Party retains exclusive jurisdiction to review sentences and punishments imposed by its courts.
ARTICLE 10TRANSIT OF CONVICTED PERSONS
1. If one of the Parties transports a convicted person from or to another jurisdiction through the territory of the other Party, the former sends the latter a request for permission for such transit.
2. In the case of air transportation, when landing on the territory of the other Party is not planned, such a permit is not required.
3. The requested Party shall, in accordance with its domestic law, satisfy the transit request of the requesting Party.
ARTICLE 11 LANGUAGE
Requests for transfer and written communications between the Parties submitted in support of the request for transfer of a convicted person must be certified and accompanied by a translation into the language of the requested Party or into English.
Responses to requests must be written in the language of the requesting Party or in English.
ARTICLE 12 EXPENSES
All expenses incurred in connection with the transfer of the convicted person or the further execution of the sentence after the transfer shall be borne by the receiving Party, except for expenses incurred by the transferring Party solely within the jurisdiction of the transferring Party. However, the receiving Party may provide for the possibility of reimbursing all or part of the transfer costs from the convicted person.
ARTICLE 13 DISPUTE RESOLUTION
Any disputes arising in the interpretation, application or implementation of this Treaty shall be resolved through diplomatic channels, unless the central authorities are unable to make a decision on their own.
ARTICLE 14APPLICATION
This Agreement applies to the transfer of convicted persons who were convicted before or after the entry into force of this Agreement.
ARTICLE 15 FINAL PROVISIONS
1. Each of the Parties, through diplomatic channels, shall notify the other Party in writing of the completion of the internal procedures necessary for the entry into force of this Treaty in accordance with its legislation. This Agreement shall enter into force on the thirtieth (30) day following the date of receipt of the last notification.
2. This Agreement remains in force until either Party notifies the other Party in writing through diplomatic channels of its intention to terminate this Agreement. Termination of this Agreement shall take place on the one hundred and eightieth (180) day after the date of receipt by one Party of the notice of termination by the other Party.
3. The termination of this Agreement does not affect the transfer processes initiated prior to its termination.
IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective States, have signed this Treaty.
COMMITTED in ___________ ____ ______ ____ in two copies, each in Kazakh, Korean and English, all texts being authentic. In case of disagreement in the interpretation of this Agreement, the English text shall prevail.
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FOR THE REPUBLIC OF KAZAKHSTAN
FOR THE REPUBLIC OF KOREA
President
Republic of Kazakhstan
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