On signing the Agreement between the Republic of Kazakhstan and the Republic of North Macedonia on Mutual Legal Assistance in Criminal Matters

Home / Decree / On signing the Agreement between the Republic of Kazakhstan and the Republic of North Macedonia on Mutual Legal Assistance in Criminal Matters

Decree of the President of the Republic of Kazakhstan dated November 13, 2018 No. 785.

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 North Macedonia on Mutual Legal Assistance in Criminal Matters.

The footnote. Paragraph 1 as amended by Decree of the President of the Republic of Kazakhstan dated 06/28/2019 No. 35.

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 North Macedonia on mutual Legal assistance in Criminal Matters, authorizing amendments and additions that are not fundamental.

The footnote. Paragraph 2 as amended by Decree of the President of the Republic of Kazakhstan dated 06/28/2019 No. 35.

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

President of the Republic of Kazakhstan

N. Nazarbayev

Approved by Decree of the President of the Republic of Kazakhstan on November 13, 2018 No. 785

Project

The footnote. Throughout the text of the Treaty, the words "Republic of Macedonia", "Republic of Macedonia", "Republic of Macedonia", "Republic of Macedonia" are replaced respectively by the words "Republic of North Macedonia", "Republic of North Macedonia", "Republic of North Macedonia", "Republic of North Macedonia" in accordance with the Decree of the President of the Republic of Kazakhstan dated 06/28/2019 № 35.

AGREEMENT BETWEEN THE REPUBLIC OF KAZAKHSTAN AND THE Republic OF North Macedonia ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

The Republic of Kazakhstan and the Republic of North Macedonia, hereinafter referred to as the "Contracting Parties",

Desiring to promote effective cooperation in the field of combating crime based on respect for sovereignty and equality,

Considering that this goal can be achieved through the conclusion of an international bilateral agreement establishing the procedure for providing legal assistance in criminal matters,

We have agreed on the following:

ARTICLE 1

THE MAIN PROVISIONS

1. In accordance with the provisions of this Treaty and their national legislation, the Contracting Parties undertake to provide each other with the widest possible legal assistance in criminal matters.

2. Such legal assistance includes:

a) determining the location and identification of a person and objects;

b) handing over documents, materials and material evidence related to the criminal proceedings;

(d) The temporary transfer of persons in custody;

e) conducting forensic examinations, examining documents or objects;

(f) Conducting searches, seizure of evidence and confiscation of assets;

(g) Exchange of information on national legislation;

(h) Obtaining any other legal assistance, other than that provided for in paragraph 3 of this Article, which is not contrary to the national legislation of the Requested Contracting Party.

3. This Agreement does not apply to:

(a) The execution of arrest warrants and other measures restricting a person's personal freedom;

b) Extradition of persons;

(d) The transfer of convicted persons for the purpose of serving their sentences; and

(e) Transfer of criminal proceedings.

ARTICLE 2

DUAL JURISDICTION

1. Legal assistance may be provided if the act in respect of which it is requested is not a criminal offence in the Requested Contracting Party.

2. If the request for legal assistance relates to searches, seizures, seizure of assets and other activities affecting the fundamental rights of a person, or related to the invasion of places or premises and the seizure of objects, legal assistance is provided if the act in respect of which it is requested is recognized as a crime under the national legislation of the Requested Contracting Party.

ARTICLE 3

REFUSAL OR POSTPONEMENT OF LEGAL ASSISTANCE

1. The requested Contracting Party may refuse to provide the requested legal assistance in whole or in part if:

a) the conditions for the performance of certain types of legal assistance provided for in this Agreement have not been met;

b) the execution of the request poses a threat to the sovereignty, security, public order or other essential interests of the Requested Contracting Party or is contrary to its national legislation;

(c) The request concerns coercive measures that are contrary to the national legislation of the Requested Contracting Party;

(d) There are substantial grounds to believe that the request for assistance is aimed at criminalizing a person on the grounds of his or her race, gender, religion, nationality, ethnic origin or political beliefs, or that the position of that person may be harmed for any of these reasons.

2. Before refusing to execute a request, the central authority of the Requested Contracting Party must consult with the central authority of the Requesting Contracting Party.

3. The requested Contracting Party shall refuse legal assistance if the conditions for the provision of certain types of legal assistance provided for in this Treaty are not provided for by its national legislation.

4. Any refusal to provide legal assistance must be motivated.

ARTICLE 4

CENTRAL AUTHORITIES

1. For the purposes of this Treaty, the central authorities designated by the Contracting Parties shall cooperate directly or through diplomatic channels or through the International Criminal Police Organization (Interpol).

2. The central authorities are:

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

for the Republic of North Macedonia - the Ministry of Justice of the Republic of North Macedonia.

3. The Contracting Parties shall notify each other through diplomatic channels of any changes regarding the central authorities or the transfer of their functions to other bodies.

ARTICLE 5

FORM AND CONTENT OF REQUESTS

1. The request shall be drawn up in writing, signed by an official and stamped by the competent authority of the Requesting Contracting Party.

2. The request for assistance should include the following:

a) the name of the competent authority that sends the request and the name of the competent authority to which the request is sent;

(b) The purpose and description of the requested assistance;

d) a description of the actions and reasons for sending the request;

e) the reasons for requesting evidence, information or other measures;

(f) Where appropriate, details of the payments and compensations to which the person called to appear is entitled; and

g) if necessary, information about the officials whose presence is required during the execution of the request.

3. Whenever possible, the request should also contain:

a) information about the identity and location of the person to whom the documents are to be served, their procedural status and the manner in which the service is to be performed;

(b) Information on the identity and location of the person who is to give evidence or assist in the proceedings;

c) information about the identity of the person, objects and documents, the location of which must be established;

(d) As accurate a description as possible of the place or person to be searched and the funds to be seized or confiscated;

e) a description of the way in which any testimony or statements should be accepted and recorded;

(f) A list of questions to be asked to the person being heard;

g) a description of the specific procedure to be followed when executing the request;

h) Confidentiality requirements;

(i) Any other information that may be provided to the Requested Contracting Party to facilitate the execution of the request.

4. If the Requested Contracting Party considers that the information contained in the request is insufficient for its execution, it has the right to request additional information.

5. The request and supporting documents submitted in accordance with the provisions of this Article shall be drawn up in the language of the Requesting Contracting Party and accompanied by an English translation.

6. A request sent through the central authorities defined in Article 4 of this Treaty may be sent in advance by any expeditious means of transmitting information, including fax and e-mail. In such cases, the original request must be sent simultaneously by mail.

ARTICLE 6

REQUEST EXECUTION

1. The requested Contracting Party shall immediately execute the request in accordance with its national legislation. For this purpose, the competent authority of the Requested Contracting Party issues summonses for the appearance of the summoned persons, decisions on search, seizure, arrest or any other action necessary for the execution of the request.

2. Upon request, the requested Contracting Party shall execute the request in accordance with the procedure established by the Requesting Contracting Party, if this does not contradict the national legislation of the Requested Contracting Party.

3. The requested Contracting Party may allow the officials indicated in the request to be present at its execution, if this does not contradict the national legislation of the Contracting Parties.

For this purpose, the Requested Contracting Party shall immediately inform the Requesting Contracting Party of the date and place of execution of the request.

4. The requested Contracting Party shall immediately inform the Requesting Contracting Party of the results of the execution of the request.

5. The documents sent as execution of the request shall be drawn up in the language of the Requested Contracting Party and accompanied by an English translation, as well as stamped by the competent authority of the Requested Contracting Party that executed the request.

ARTICLE 7

LOCATING OR IDENTIFYING PERSONS AND OBJECTS

1. Any Contracting Party may request the other Contracting Party to establish the location, identify persons and provide the place of residence or place of registration of wanted persons who must appear before the competent authorities of the Requesting Contracting Party and are believed to be located in the territory of the Requested Contracting Party.

2. Any Contracting Party may request from the other Contracting Party to establish the location, identify the items and provide relevant data, or apply any other measure that makes it possible to determine the location and identification.

3. The requested information must be transmitted to the Requesting Contracting Party through the central authorities provided for in Article 4 of this Treaty. In emergency cases, a request can also be sent through the International Criminal Police Organization (Interpol).

ARTICLE 8

HANDING OVER DOCUMENTS

1. The requested Contracting Party shall serve the documents sent by the Requesting Contracting Party in accordance with its national legislation.

2. After delivery, the requested Contracting Party shall send to the Requesting Contracting Party a confirmation of delivery with the signature of the official or seal of the authority that carried out the delivery, indicating the date, time, place and method of delivery, as well as information about the person to whom the documents were delivered.

3. If no delivery has been made, the Requested Contracting Party shall immediately notify the Requesting Contracting Party and inform it of the reasons for non-delivery.

4. A request for delivery of a notice of attendance to the competent authority of the Requested Contracting Party must be sent before the expiration of the period specified in paragraph 2 of Article 10 of this Treaty.

5. Notifications of summons to the competent authority of the Requesting Contracting Party and the documents served should not be accompanied by any threat of coercive measures in case of non-appearance.

ARTICLE 9

OBTAINING TESTIMONY IN THE REQUESTED CONTRACTING PARTY

1. The requested Contracting Party, in accordance with its national legislation, shall obtain testimony from witnesses, victims, persons under investigation or arrest in the Requested Contracting Party, experts or other persons, as well as receive materials, documents and any other testimony specified in the request and transmit them to the Requesting Contracting Party.

2. The requested Contracting Party shall immediately notify the Requesting Contracting Party of the date, place and time of the measures to obtain testimony from the persons referred to in paragraph 1 of this Article, as well as for the purposes provided for in paragraph 3 of Article 6 of this Treaty. If necessary, the central authorities of the Contracting Parties shall consult with each other to establish a date suitable for both Contracting Parties.

3. A person called to give evidence has the right to refuse to give evidence if the national legislation of the Requested Contracting Party or the Requesting Contracting Party allows this. For this purpose, the Requesting Contracting Party mentions this in the request.

4. The requested Contracting Party shall permit the presence of a lawyer for a person called to submit statements and give evidence whenever this is provided for by the national legislation of the Requesting Contracting Party and does not contradict the national legislation of the Requested Contracting Party.

5. Documents and other items indicated by the person called to file statements or give evidence may be used and may be admissible as evidence in the Requesting Contracting Party in accordance with the legislation of the Requesting Contracting Party.

ARTICLE 10

OBTAINING TESTIMONY IN THE REQUESTING CONTRACTING PARTY

1. Upon the request of the Requesting Contracting Party, the requested Contracting Party shall summon a person to appear before the competent authority of the Requesting Contracting Party for the purpose of questioning, receiving statements, or being heard as an expert or performing other procedural actions. The requested Contracting Party shall immediately notify the Requesting Contracting Party of the possibility of the said person's appearance.

2. The requesting Contracting Party shall transmit to the Requested Contracting Party a request for the delivery of a notice of summons to appear before the competent authority located in the territory of the Requesting Contracting Party no later than sixty days before the day set for appearance, except in urgent cases when the Requested Contracting Party has agreed on a shorter period.

3. The requesting Contracting Party shall indicate in the request the amount of payments and compensation for expenses to which a person who has been summoned to appear on the territory of the Requesting Contracting Party to testify is entitled.

ARTICLE 11

GUARANTEES AND SPECIAL RULES

1. If the person is located in the territory of the Requesting Contracting Party in accordance with Article 10 of this Treaty during the period during which the person remains in the Requesting Contracting Party, he/she:

a) may not, regardless of his nationality, be held criminally or administratively liable in its territory, taken into custody and punished for an act committed prior to entry into the territory of the Requesting Contracting Party;

(b) Must not be forced to give evidence or other statements, or to participate in any event related to a proceeding other than that referred to in the request, unless that person consents to it.

2. Paragraph 1 of this Article shall terminate if the person indicated therein:

a) does not leave the territory of the Requesting Contracting Party within thirty days from the moment when he was officially notified that his presence is no longer necessary. This period does not include the period during which the above-mentioned person has not left the territory of the Requesting Contracting Party for reasons beyond his control.;

b) after leaving the territory of the Requesting Contracting Party, voluntarily returns back.

3. A person who has received a notification of a summons to the competent authority and has failed to appear or refused to make a statement, give evidence or take part in other activities provided for in Articles 9 and 10 of this Treaty, shall not be forcibly escorted to the competent authority of the Requesting Contracting Party as a result of his non-appearance or refusal. In such cases, upon request, other measures provided for by the national legislation of the Requested Contracting Party may be applied.

4. The victim, witness or expert, who is interrogated in accordance with the procedure provided for in Articles 9 and 10 of this Treaty, is responsible for the content of the testimony, expert opinion given during the appearance before the competent authority, in accordance with the national legislation of the Contracting Parties, while maintaining the jurisdiction of each Contracting Party in respect of the offense committed by them.

ARTICLE 12

VIDEO CONFERENCE INTERROGATION

1. If a person located in the territory of the Requested Contracting Party is to be questioned as a witness, victim, suspect, accused or expert by the competent authorities of the Requesting Contracting Party, the latter may request that the interrogation take place via videoconference in accordance with the provisions of this article, if the voluntary appearance of the person on its territory is impossible.

2. Interrogation by videoconference may also be requested in relation to a person under investigation or for criminal prosecution, if he agrees to such interrogation and if this does not contradict the national legislation of each of the Contracting Parties. In such a case, the lawyer of the person must be given permission to be present at the location of the above-mentioned person in the Requested Contracting Party or before the competent authority of the Requesting Contracting Party, allowing the lawyer to communicate confidentially at a distance with the person whose interests he is defending.

3. Interrogation by videoconference should always be carried out if the person to be interrogated is being held in custody in the territory of the Requested Contracting Party.

4. The requested Contracting Party shall grant permission to conduct procedural actions by videoconference, provided that it has the technical means to carry it out.

5. Requests for procedural actions via videoconference, in addition to what is provided for in Article 5 of this Treaty, indicate the reasons why it is not possible for a person who is not in custody and with whose participation the procedural actions are to be conducted to be present in person on the territory of the Requesting Contracting Party.

6. The competent authority of the Requested Contracting Party shall summon a person to appear in accordance with the national legislation of its Party.

7. Regarding the conduct of procedural actions via videoconference, the following provisions apply:

a) the competent authorities of both Contracting Parties are present during the taking of the testimony and, if necessary, assist in the translation. The competent authority of the Requested Contracting Party shall establish the identity of the person who has appeared and make sure that this event is conducted in accordance with its national legislation. If the competent authority of the Requested Contracting Party finds that the fundamental principles of the national legislation of its Party are not being observed during the course of receiving testimony, it will immediately take any necessary measure to carry out the event in accordance with these principles.;

b) the competent authorities of both Contracting Parties jointly coordinate measures to protect the summoned person, if necessary.;

c) the person summoned for questioning has the right to refuse to give evidence if the legislation of the Requested Contracting Party or the Requesting Contracting Party allows this.

8. Upon completion of the procedural action, the competent authority of the Requested Contracting Party shall draw up an official act indicating the date and place of its holding, information about the identity of the person who appeared, information about the identities of other persons participating in the event and who they appeared in, as well as the technical conditions under which testimony or other procedural actions were taken. The original of the above-mentioned act is immediately sent to the competent authority of the Requesting Contracting Party.

9. Expenses incurred by the Requested Contracting Party as a result of the videoconference shall be reimbursed by the Requesting Contracting Party, except in cases where the Requested Contracting Party does not require their reimbursement in full or in part.

10. The requested Contracting Party has the right to authorize the use of videoconference technologies also for purposes other than those specified in paragraphs 1 and 2 of this Article, including such use for the purposes of identifying persons and objects or conducting confrontations.

ARTICLE 13

TEMPORARY TRANSFER OF PERSONS IN CUSTODY

1. An arrested person or a person serving a custodial sentence in the territory of the Requested Contracting Party, whose appearance as a witness or expert is requested by the Requesting Contracting Party, is temporarily transferred to its territory, provided that he is transferred back within the period specified by the Requested Contracting Party, which should not exceed six (6) months. The requesting Contracting Party may request an extension of the specified period. Such an extension can only be granted once.

2. The transfer of the persons referred to in paragraph 1 of this article may be refused if:

a) the person does not consent to its transfer;

(b) The presence of a person is required in criminal proceedings that are conducted in the Requested Contracting Party;

(d) There are other substantial grounds against its temporary transfer to the Requesting Contracting Party.

3. The temporarily extradited person must be detained both in the Requesting Contracting Party and in Transit.

4. If a third Party is required to temporarily transfer a person in custody of one of the Contracting Parties through the territory of the other Contracting Party, the requested Contracting Party shall approve the transit of that person if that person is not a national of that Contracting Party.

ARTICLE 14

PROTECTIVE MEASURES

If necessary, or in order to ensure an objective investigation and the correct administration of justice, both Contracting Parties shall take measures provided for in their national legislation to protect victims, witnesses and other persons involved in criminal proceedings in relation to crimes and requested legal assistance measures.

ARTICLE 15

PROVISION OF OFFICIAL OR PUBLICLY AVAILABLE DOCUMENTS

1. Upon request, the Requested Contracting Party shall provide the Requesting Contracting Party with copies of materials or documents available to the public.

2. The requested Contracting Party has the right to provide copies of materials or documents that are not publicly available, to the extent and under the conditions in which these copies are available to the judicial or law enforcement authorities of the Requested Contracting Party. Such copies must be certified by the competent authority of the Requested Contracting Party. The requested Contracting Party has the right to reject the above-mentioned request in whole or in part, informing about the reasons for such a decision.

ARTICLE 16

PROVISION OF DOCUMENTS, MATERIALS OR ITEMS

1. If the request concerns the transfer of documents or materials not specified in Article 15 of this Treaty, the Requested Contracting Party may transfer copies thereof. Meanwhile, in each case, when the Requesting Contracting Party expresses a request for the transfer of originals, the Requested Contracting Party executes the request as far as possible.

2. The original documents and materials, as well as the items transferred to the Requesting Contracting Party, are returned to the Requested Contracting Party in each case as soon as possible.

ARTICLE 17

SEARCHES, SEIZURES, AND ARRESTS

1. Upon the request of the Requesting Contracting Party, the Requested Contracting Party shall carry out checks on its territory to determine the location of proceeds of crime or items related to the crime, and shall inform the Requesting Contracting Party of the results. In the request, the Requesting Contracting Party shall indicate to the Requested Contracting Party the grounds for the possible presence in the territory of the latter of any proceeds of crime or items related to the crime.

2. Upon the discovery of proceeds of crime or items related to a crime, the Requested Contracting Party, upon the request of the Requesting Contracting Party, shall take any measures provided for by its national legislation with a view to seizing and seizing proceeds of crime or items related to a crime.

3. Upon request of the Requesting Contracting Party, the Requested Contracting Party shall transfer in whole or in part any proceeds of crime and items related to the crime, as well as any monetary amounts received from their sale, in accordance with the terms agreed between the Contracting Parties and national legislation.

4. In applying this article, any rights of the Requested Contracting Party or third Parties with respect to the aforementioned proceeds of crime or items related to the crime shall be respected.

ARTICLE 18

ESTABLISHMENT OF BANK ACCOUNTS AND FINANCIAL INFORMATION

1. The requested Contracting Party may, in accordance with its national legislation, identify the person who is involved in the crime committed and is the holder of an account with a bank or other financial institution in its territory, and inform the Requesting Contracting Party accordingly. Such information may also contain information about the users of these accounts, their location, as well as transactions.

2. The measures referred to in paragraph 1 of this article may also apply to financial institutions other than banks.

3. The provision of legal assistance specified in this article may not be refused on the basis of bank secrecy.

ARTICLE 19

COMPATIBILITY WITH OTHER COOPERATION TOOLS OR FORMS OF LEGAL ASSISTANCE

1. The provisions of this Treaty shall not affect the rights and obligations of each of the Contracting Parties arising for it from other international treaties to which it is a party.

2. This Treaty does not prevent the Contracting Parties from carrying out other forms of cooperation with each other on the provision of legal assistance in criminal matters on the basis of agreements if they comply with the national legislation of the Contracting Parties.

ARTICLE 20

EXCHANGE OF INFORMATION ON CRIMINAL PROCEEDINGS

Upon request and for the purposes of criminal proceedings, the Requested Contracting Party shall transmit to the Requesting Contracting Party information on criminal proceedings, previous convictions and sentences imposed against citizens of the Requesting Contracting Party.

ARTICLE 21

EXCHANGE OF INFORMATION ON LEGISLATION

Upon request, the Contracting Parties shall exchange information on current or previous national legislation and on judicial practice used by the Parties.

ARTICLE 22

EXEMPTION FROM LEGALIZATION AND LEGAL FORCE OF DOCUMENTS AND MATERIALS

Documents and materials submitted to provide legal assistance must be signed by an official and stamped by the competent authority and in this case do not require any legalization, certification or authentication.

ARTICLE 23

confidentiality

1. At the request of the Requesting Contracting Party, the Requested Contracting Party shall maintain confidentiality with respect to the fact of receipt of the request, its contents, the documents attached to it and any documents and materials received during its execution. If the request cannot be executed without violating confidentiality, the Requested Contracting Party shall notify the Requesting Contracting Party, which shall decide on the possibility of executing the request.

2. Upon the relevant request of the Requested Contracting Party, the Requesting Contracting Party shall maintain confidentiality with respect to any evidence and information obtained during the execution of the request for legal assistance, except in cases where evidence and information are used in the investigation and judicial proceedings of criminal cases.

ARTICLE 24

expenses

1. The Contracting Parties shall bear the expenses related to the implementation of this Agreement in accordance with their national legislation and this Agreement.

2. The Contracting Parties shall not require each other to reimburse any expenses resulting from the performance of this Agreement, except for:

a) the cost of travel and stay of experts in the territory of the Requesting Contracting Party;

(b) The costs of transferring a person in custody incurred pursuant to article 13 of this Treaty;

3. At the same time, the costs of establishing video or telephone communication, the costs associated with video or telephone communication services in the Requested Contracting Party, the translator's remuneration and travel expenses for witnesses and their travel expenses through the territory of the Requested Contracting Party must be reimbursed by the Requesting Contracting Party to the Requested Contracting Party, unless the Contracting Parties have agreed otherwise..

4. The Contracting Parties shall consult with each other to agree on measures to reimburse the costs provided for in subparagraph (c) of paragraph 2 of this Article.

ARTICLE 25

SETTLEMENT OF DISPUTES AND DISAGREEMENTS

1. Disputes and disagreements arising during the application of the provisions of this Treaty shall be resolved by the central authorities of the Contracting Parties through consultations.

2. If such disputes and disagreements are not resolved by the central authorities of the Contracting Parties, they shall be resolved through diplomatic channels.

ARTICLE 26

FINAL PROVISIONS

1. This Treaty is subject to ratification.

2. This Treaty shall be concluded for an indefinite period and shall enter into force on the date of receipt of the last written notification through diplomatic channels that the Contracting Parties have completed the procedures necessary for its entry into force.

3. This Agreement may be amended and supplemented by mutual agreement of the Contracting Parties, which are an integral part of this Agreement and are formalized by separate protocols that enter into force in accordance with the procedure established by paragraph 2 of this Article.

4. This Agreement shall terminate upon the expiration of one hundred and eighty (180) days from the date of receipt through diplomatic channels of one of the Contracting Parties of a written notification by the other Contracting Party of its intention to terminate this Agreement. In the event of termination of this Agreement, the procedures for providing legal assistance that were initiated during its validity period remain in force until they are fully implemented.

5. This Treaty applies to any request sent after its entry into force, including if the relevant crimes were committed before its entry into force.

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

COMMITTED in _____________ ___ _______201__ in two copies, each in Kazakh, Macedonian and English, all texts being authentic.

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

FOR THE REPUBLIC OF KAZAKHSTAN

FOR the Republic of North Macedonia

President

Republic of Kazakhstan

Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases