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

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Decree of the President of the Republic of Kazakhstan dated September 14, 2022 No. 1011

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 Peru on Mutual Legal Assistance in Criminal Matters.

2. To authorize the Prosecutor General of the Republic of Kazakhstan, Berik Asylov Nogaiuly, to sign on behalf of the Republic of Kazakhstan an agreement between the Republic of Kazakhstan and the Republic of Peru on mutual Legal assistance in Criminal Matters, authorizing amendments and additions that are not fundamental.

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 September 14, 2022 No. 1011

Project

Agreement between the Republic of Kazakhstan and the Republic of Peru on Mutual Legal Assistance in Criminal Matters

The Republic of Kazakhstan and the Republic of Peru, hereinafter referred to as the "Parties",

Desiring to enhance the effectiveness of both Sides in the prevention, investigation, prosecution and suppression of crime through cooperation and mutual legal assistance in criminal matters,

We have agreed on the following:

Article 1 Scope of application

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

2. Mutual legal assistance includes the following actions:

a) Transfer of documents, subpoenas and items;

b) determining the location or identification of persons and objects;

(d) The temporary transfer of persons in custody and persons serving sentences of deprivation of liberty in order to ensure their appearance or hearing;

(e) Carrying out search, seizure and confiscation;

(f) Coercive measures, including the identification of bank accounts, their freezing, and the provision of financial information;

g) examination of objects and documents;

(h) Providing information and evidence;

(i) Allowing the presence of persons of the Requesting Party during the execution of requests;

(j) Any other forms of assistance provided for by the national legislation of the Requested Party.

Article 2 Central authorities

1. For the purposes of this Agreement, the central authorities designated by the Parties shall interact directly with each other.

2. The central authorities are:

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

For the Republic of Peru, it is the Office of the Attorney General.

3. In case of any changes related to the central authorities, the Parties notify each other through diplomatic channels.

Article 3 Form and content of requests for mutual legal assistance

1. A request for legal assistance shall be drawn up in writing, duly signed and stamped by the authorized body of the Requesting Party.

2. The request must specify:

a) the name of the competent authority that made the request;

b) the purpose of the request and the description of the requested assistance;

(c) A description of the facts that are the subject of investigation or judicial proceedings and their legal qualification;

(d) An indication of the applicable provisions of national legislation, including provisions on the statute of limitations;

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

(f) Information on the amounts and expenses provided to the person who provides assistance to the Requesting Party;

g) information about the officials whose presence, depending on the circumstances, is necessary in the execution of the request.

3. Whenever possible, a request for assistance should 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 or 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 objects to be seized or confiscated;

(e) A description of the manner in which any testimony or statements are to be obtained 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) The period during which the Requesting Party requests that the request be executed;

j) any other information that may be provided to the Requested Party to facilitate the execution of the request.

4. The requested Party has the right to accept for execution a request received by e-mail or by other technical means of communication. The requesting Party must send the original request by mail or through diplomatic channels.

Article 4 Language

1. The request and the necessary documents must be drawn up in the language of the Requesting Party and accompanied by a translation into the language of the Requested Party or into English.

2. Responses to requests, together with appendices, must be sent in the language of the Requested Party and accompanied by an English translation. In the case of a large volume of documents related to the execution of the request, the central authorities of the Parties have the right to hold consultations in order to determine the list of documents for translation.

Article 5 Grounds for providing legal assistance

Mutual legal assistance should be provided even if the actions for which it is requested by the Requesting Party are not criminalized in the Requested Party, unless this entails the use of coercive measures.

Article 6 Refusal to provide legal assistance

1. The requested Party has the right to 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 Party or is contrary to its national legislation;

(d) There are substantial grounds to believe that the request for legal 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 person's position may be harmed for any of these reasons.;

(e) The request for legal assistance relates to a crime that is being investigated in the Requested Party, and the execution of the request may prejudice the investigation conducted in that Party.

2. Any refusal to provide legal assistance must be justified.

Article 7 Execution of requests for legal assistance

1. Requests for legal assistance shall be executed in accordance with the national legislation of the Requested Party. In appropriate cases, the Requested Party has the right to act in accordance with the procedure proposed by the Requesting Party, if this does not contradict the national legislation of the Requested Party.

2. The requested Party has the right to delay the execution of the request if such execution serves as an obstacle to the ongoing criminal proceedings conducted in its territory.

3. Before postponing the provision of legal assistance, the Requested Party, after possible consultations with the Requesting Party, decides whether it can comply with the request in whole or in part under such conditions as it deems necessary.

4. The decision on postponing the execution of the request explains its reasons and the Requested Party informs the Requesting Party about the reasons for postponing the execution of the request.

5. The Requested Party shall execute the request for assistance as soon as possible or, if possible, within the time period specified by the Requesting Party, which must be justified.

Article 8 Limitation of use and confidentiality

1. The Requesting Party has the right to request from the Requested Party to ensure the confidentiality of the request and its contents and/or the results of the execution of the request. If the Requested Party is unable to comply with the confidentiality requirement, it shall immediately inform the Requesting Party, which shall decide whether the request is subject to further execution without confidentiality.

2. The requested Party has the right to request the Requesting Party not to use the information or evidence obtained during the execution of the request in other proceedings, except as specified in the request, without the prior consent of the Requested Party.

Article 9 Submission of documents and subpoenas

1. The Requested Party shall serve the documents submitted to it for this purpose by the Requesting Party.

2. After the documents have been served, the requested Party shall provide the Requesting Party with a confirmation of this with the signature of the official and the seal of the authority that performed the service, indicating the date, time, place and method of delivery, as well as information about the person who received the documents. If the service has not been completed, the Requested Party shall immediately inform the Requesting Party and inform it of the reasons for the non-delivery of the documents.

3. Summonses requiring persons to appear before the competent authorities of the Requesting Party shall be transmitted to the Requested Party no later than sixty (60) days prior to the date of the scheduled appearance. In urgent cases, the Parties may agree on a shorter period.

4. Any person who fails to appear at the competent authority of the Requesting Party is not subject to any punishment or compulsory measure, even if the summons contains a warning about possible liability in case of non-appearance.

Article 10 Guarantees

1. Any person, regardless of his nationality, who appears on a summons to the competent authority of the Requesting Party, may not be subjected to criminal prosecution, arrest, charge, punishment or any other restriction of his personal freedom in the territory of the Requesting Party for acts or convictions that preceded entry and are not indicated in the summons.

2. Paragraph 1 of this Article shall not apply if the person indicated therein:

a) does not leave the territory of the Requesting Party within fifteen (15) days from the moment when he was officially notified that his presence is no longer necessary. However, this period does not include the period during which the said person has not left the territory of the Requesting Party for reasons beyond his control.;

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

Article 11 Location determination or identification of persons and objects

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

2. Any Party has the right to request the other Party to establish the location, identify the objects and provide relevant data, or apply any other measure that makes it possible to determine the location and carry out identification.

3. The requested information shall be communicated to the Requesting Party on the basis of the request provided for in Article 3 of this Treaty. In urgent cases, a request can also be sent through the International Criminal Police Organization (Interpol).

Article 12 Video conferencing eavesdropping

1. The interrogation of witnesses, suspects, accused persons, experts or victims who are to appear before the competent authority of the Requesting Party shall preferably be conducted via videoconference.

2. The following rules apply to video conferencing:

(a) The hearing shall be conducted in the presence of an official of the competent authority of the Requested Party. The official of this body is responsible for identifying the person from whom it is necessary to obtain testimony and for ensuring compliance with the fundamental principles provided for in the national legislation of the Requested Party, taking the necessary measures to do so.;

b) the competent authorities of the Parties, if necessary, agree on measures related to the protection of the person to be heard.;

(c) The hearing is conducted under the supervision of an official of the competent authority of the Requesting Party in accordance with its national legislation;

(d) At the end of the hearing, an official of the competent authority of the Requested Party shall draw up a protocol indicating the date, time and place of the hearing, information on the identity of the person heard, information on the content of his testimony, as well as the identity and procedural status of other persons who participated in the hearing. This protocol must be transmitted to the Requesting Party.;

e) The Parties agree, through their competent authorities, to provide an interpreter and/or a defender for the person being heard. In this case, the interpreter and/or the defender of the person being heard is allowed to be present at the hearing and other procedural actions involving the person in the Requested Party.

Article 13 Timely transfer of arrested and convicted persons

1. If the provisions of Article 11 of this Treaty do not apply, any person arrested or convicted in the territory of the Requested Party and whose personal presence as a witness or expert is requested by the Requesting Party, regardless of nationality, may be temporarily transferred to the Requesting Party with the consent of the competent authority of the Requested Party for a period specified by the Requesting Party, which should not exceed three (3) months. The requesting Party has the right to request an extension of the specified period, which can be granted only 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 who is the subject of an ongoing investigation or judicial proceeding in the Requested Party is required.;

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

3. The temporarily transferred person must be detained both in the Requesting Party and in the transit State.

4. If a third State is required to transfer a person in custody to one of the Parties through the territory of the other Party, the requested Party must allow the transit of that person if that person is not a national of that Party.

Article 14 Search and seizure

1. The requested Party shall carry out a search, seizure and transfer of any objects or documents, provided that the request for legal assistance contains information that justifies the need for such actions.

2. In case of seizure of items and documents, the Requested Party must verify their authenticity. If, according to the national legislation of the Requested Party, the conduct of the actions referred to in paragraph 1 of this Article requires a special decision by the competent authority, such decision must be provided by the Requesting Party.

3. The Requested Party has the right to require the Requesting Party to agree to such conditions as the Requested Party considers necessary to protect the rights and interests of third parties with respect to the transferred items and documents. If such consent is not obtained, the Requested Party may refuse the transfer.

Article 15 Assistance in confiscation procedures

1. The Parties, in accordance with their national legislation, shall provide mutual legal assistance in the identification, detection, seizure and confiscation of objects, documents, financial assets and other proceeds of crime.

2. If it becomes known that proceeds of crime, instruments of crime, objects and documents, as well as financial assets subject to seizure or confiscation, are located on the territory of one of the Parties, the other Party may be informed about this.

3. The transfer of proceeds from crime, instruments of crime, objects and documents, as well as financial assets subject to seizure or confiscation, shall be carried out on agreed terms.

Article 16financial information, establishment and freezing of bank accounts

1. The requested Party, in accordance with its national legislation, has the right to determine whether the person involved in the commission of a crime is a bank account holder with a bank or other financial institution located on its territory and to inform the Requesting Party about this. Such assistance may also include information about the identification of users of such accounts, their location and related transactions, as well as the freezing of such accounts.

2. The provision of assistance specified in paragraph 1 of this article may not be refused on the basis of bank secrecy.

Article 17 Transfer and return of items and documents

1. Any items and documents transferred to the Requesting Party shall be returned as soon as possible, except in cases where the Requested Party waives its right to return them.

2. If the items, documents and/or property seized during the arrest of a person are necessary for conducting an investigation or judicial proceedings, the Requested Party may postpone their transfer for as long as it deems necessary. The requested Party may transfer them to the Requesting Party, provided that they are returned as soon as possible.

3. The Requested Party may, in accordance with its legislation, require the Requesting Party to agree to such conditions as the Requested Party deems necessary to protect the rights and interests of bona fide third parties with respect to the transferred items and documents. If such consent is not obtained, the Requested Party may refuse to transfer the items and documents.

Article 18 Voluntary transmission of information

1. The Parties have the right, on their own initiative, to provide each other with any information that may be useful to the other Party.

2. When providing such information, restrictions may be imposed on its use, which must be respected.

Article 19 Expenses

1. In accordance with its legislation, the Requested Party shall bear the costs associated with the execution of the request for legal assistance, with the exception of:

(a) The costs of travel and stay in the Requested Party of the persons referred to in subparagraph (g) of paragraph 2 of Article 3 of this Treaty;

(b) The costs of travel and stay of the persons referred to in paragraph 3 of articles 9 and 13 of this Treaty;

(c) Expenses incurred in connection with the execution of a request for legal assistance in accordance with article 12 of this Treaty;

d) the costs of conducting examinations, unless otherwise agreed by the Parties.

2. When the execution of a request for legal assistance entails unforeseen expenses, the Parties have the right to hold consultations in order to share the costs arising from the execution of the request.

Article 20 Exemption from the legalization of documents and materials

The documents and materials provided in the order of providing legal assistance must be signed by an official and certified by an authorized body, in which case their further legalization, certification or authentication is not required.

Article 21The relationship of the Treaty with other international agreements

This Agreement does not affect the rights and obligations of the Parties arising from other international agreements to which they are parties.

Article 22 Dispute resolution

Any differences arising during the application or interpretation of this Treaty shall be resolved through consultations and negotiations through diplomatic channels.

Article 23 Final provisions

1. This Agreement shall be concluded for an indefinite period and shall enter into force from the date of receipt of the last written notification through diplomatic channels that the Parties have completed the internal procedures necessary for its entry into force.

2. This Agreement may be amended by mutual agreement of the Parties. Such amendments and additions are an integral part of the Agreement, which are formalized in separate protocols and enter into force in accordance with the procedure provided for in paragraph 1 of this article.

3. Each Party has the right to terminate this Agreement. Termination shall take effect upon the expiration of one hundred and eighty (180) days from the date of receipt by one of the Parties of a written notification by the other Party through diplomatic channels of its intention to terminate this Agreement.

4. In the event of termination of this Agreement, the measures that were initiated during its validity period remain in force until their full implementation.

5. This Treaty may be applied to requests concerning crimes committed before or after its entry into force.

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

COMMITTED in __________ _____ ______ 20 ___ in two original copies each in Kazakh, Spanish and English, all texts being equally authentic.

In case of discrepancies between the texts of this Agreement, the English text shall prevail.

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For the Republic of Kazakhstan

For the Republic of Peru

President

Republic of Kazakhstan

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