On the ratification of the Convention on Obtaining Evidence Abroad in Civil or Commercial Matters

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The Law of the Republic of Kazakhstan dated April 6, 2016 No. 485-V SAM.

 To ratify the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, done at The Hague on March 18, 1970, with declarations and reservations in accordance with annexes 1 and 2 to this Law.

President

Republic of Kazakhstan

N. NAZARBAYEV

Appendix 1 to the Law of the Republic of Kazakhstan dated April 6, 2016 No. 485-V SAM On the ratification of the Convention on Obtaining Evidence Abroad in Civil or Commercial Matters

Declarations to the Convention on Obtaining Evidence Abroad in Civil or Commercial Matters

The Republic of Kazakhstan, in accordance with the Convention on Obtaining Evidence Abroad in Civil or Commercial Matters (hereinafter referred to as the Convention), makes the following statements:

1) the receipt by diplomatic or consular representatives of other Contracting States without coercion of evidence in civil or commercial matters provided for in Article 15 of the Convention is possible only with the permission of the competent authority of the Republic of Kazakhstan.;

2) obtaining evidence without coercion in civil or commercial matters, provided for in articles 16 and 17 of the Convention, is possible without prior permission from the competent authority of the Republic of Kazakhstan.;

3) a diplomatic or consular representative or an authorized person appointed to obtain evidence may apply to the competent authority of the Republic of Kazakhstan with a request for assistance referred to in article 18 of the Convention, provided that it complies with the legislation of the Republic of Kazakhstan.;

4) on the basis of article 23 of the Convention, judicial orders are not executed in the territory of the Republic of Kazakhstan, which are sent in order to obtain materials known in customary law States as pre-trial disclosure of documents.;

5) it is permitted, within the framework of the legislation of the Republic of Kazakhstan, to perform actions and use other methods of obtaining evidence in accordance with paragraphs b) and c) of Article 27 of the Convention.

Appendix 2 to the Law of the Republic of Kazakhstan dated April 6, 2016 No. 485-V SAM On the ratification of the Convention on Obtaining Evidence Abroad in Civil or Commercial Matters

Reservation to the Convention on Obtaining Evidence Abroad in Civil or Commercial Matters

The Republic of Kazakhstan, in accordance with articles 4 and 33 of the Convention on the Receipt of Evidence Abroad in Civil or Commercial Matters, accepts judicial orders from requesting Contracting States for execution on its territory if they are written in English and accompanied by their translation into Kazakh and (or) Russian, duly certified.

CONVENTION ON THE TAKING OF EVIDENCE ABROAD ON CIVIL OR COMMERCIAL MATTERS (Concluded on March 18, 1970)

The signatory States to this Convention,

Desiring to facilitate the transfer and execution of court orders and to continue the convergence of the various methods used for these purposes,

Desiring to improve mutual judicial cooperation in civil or commercial matters,

Have decided to conclude this Convention for these purposes and have agreed to the following provisions:

Chapter I. JUDICIAL ORDERS

Article 1

A judicial authority of a Contracting State may, in accordance with the provisions of its legislation, request, by means of a court order, the competent authority of the other Contracting State to obtain evidence or perform other procedural actions in civil or commercial matters.

The assignment may not be used to obtain evidence that is not intended for the ongoing or planned trial.

The expression "other procedural action" does not cover the service of court documents or the initiation of judicial proceedings for the purpose of executing or enforcing court decisions or orders, or issuing orders to take temporary or precautionary measures.

Article 2

A Contracting State shall designate a central authority responsible for accepting judicial orders from a judicial authority of the other Contracting State and transferring them to the competent authorities for execution. Each State forms a central authority in accordance with its legislation.

The instructions are sent to the central authority of the requested State without the mediation of any other authority of that State.

Article 3

The court order must contain the following details:

a) the name of the authority requiring its execution and the requested authority, if known to the requesting authority;

b) the names and addresses of the parties to the lawsuit and their representatives, if any;

c) the nature and subject matter of the judicial proceedings for which the evidence is requested, setting out the information necessary for the execution of the order;

d) evidence that needs to be obtained or other procedural action that needs to be performed.

 In appropriate cases, the order must also contain inter alia-

(e) The names and addresses of the persons to be questioned;

(f) The questions to be put to the interrogated persons or the circumstances about which they should be questioned;

g) documents or other property, real or personal, subject to inspection;

h) the requirement to obtain evidence under oath or with confirmation and to use a special form;

(i) The specific procedure or procedure required by article 9.

 The instruction may also contain information necessary for the application of article 11.

No legalization or other similar formality is required.

Article 4

The court order is drawn up in the language of the requested authority or accompanied by a translation into that language.

 However, a Contracting State shall accept a court order drawn up in English or French or accompanied by a translation into one of these languages, unless there is a reservation in this regard provided for in article 33.

A Contracting State in which there are several official languages and which, in accordance with domestic law, cannot accept a court order in one of these languages throughout its territory, must make a statement indicating in which language the court order should be drawn up or translated so that it can be executed in certain parts of its territory. territories. In case of non-compliance without reasonable justification with the rules defined by this statement, the costs of translation into the required language shall be borne by the requesting State.

A Contracting State may indicate in the application a language other than those mentioned in the preceding paragraph in which the instruction may be sent to its central authority.

The accuracy of the text of each translation must be certified by a diplomatic or consular representative or sworn translator, or by any other person authorized to do so in any of the States.

Article 5

If the Central Authority considers that the request does not comply with the provisions of this Convention, it shall immediately inform the authority of the requesting State that sent the court order, stating the objections that have arisen in connection with the order.

Article 6

If the authority to which the court order has been transferred is incompetent to execute it, the order must be immediately sent to the designated authority of the same State, which, in accordance with the provisions of its legislation, is competent to execute it.

Article 7

The requesting authority may, if it so wishes, obtain information on the date and place where the procedural actions requested by it will be carried out, so that interested Parties and their representatives can be present. This information is sent directly to the designated Parties or their representatives, if so desired by the authority of the requesting State.

Article 8

A Contracting State may declare that members of the judicial staff of the requesting authority of the other Contracting State may be present during the execution of the court order. This may require the prior consent of the competent authority designated by the applicant State.

Article 9

The judicial authority executing the court order applies the laws of its State regarding the methods and procedures of execution.

However, if the requesting competent authority requests that a special form be followed, such a request is granted provided that this form does not contradict the legislation of the requested State or if its application would not be impossible due to incompatibility with domestic practice and procedure or due to practical difficulties.

The court order is executed without delay.

Article 10

In executing a court order, the requested judicial authority uses the same means of coercion, in the same cases and to the same extent as they are provided for by domestic law to execute orders from the authorities of its State or petitions from Parties to a domestic lawsuit.

Article 11

When executing a court order, the person concerned may refuse to testify to the extent that he has the privilege or official duty to refuse to testify.:

(a) According to the law of the requested State, or

b) according to the legislation of the requesting State, as stipulated in the court order or otherwise confirmed by the requesting authority in an application to the requested authority.

In addition, a Contracting State may additionally declare that it recognizes such exemptions and prohibitions established by the legislation of other States other than the requested or requesting State, within the framework specified in this declaration.

Article 12

The execution of a court order may be refused only if:

(a) The execution of the order in the requested State does not fall within the jurisdiction of the judicial authority, or if

(b) The requested State finds that it may prejudice its sovereignty and security.

Enforcement may not be refused solely on the grounds that, according to domestic law, the requested State declares its exclusive competence on the merits of the claim, or domestic law does not provide for the right to sue in this case.

Article 13

The documents confirming the execution of the court order are forwarded by the requested body to the requesting body in the same way that was used by the latter.

In each case, when the order is not executed in full or in part, the requesting authority must be immediately notified of this in the same way with an explanation of the reasons for non-execution.

Article 14

The execution of a court order may not give rise to collection of any fees or costs.

 However, the requested State has the right to claim from the requesting State compensation for remuneration paid to experts and translators and expenses incurred in connection with the application of a special procedure required by the requesting State in accordance with the second paragraph of article 9.

An authority of the requested State, whose legislation imposes on the Parties the obligation to collect evidence themselves and which is unable to execute a court order on its own, may instruct a suitable person to do so after obtaining the consent of the requesting authority. When contacting him on this issue, the requested authority indicates the approximate costs that will be associated with such a procedure. If the requesting authority agrees, it will reimburse all costs incurred. In the absence of such consent, the requesting authority is not responsible for these costs.

Chapter II. OBTAINING EVIDENCE BY DIPLOMATIC OR CONSULAR REPRESENTATIVES AND AUTHORIZED PERSONS

Article 15

A diplomatic or consular representative of a Contracting State may, in the territory of the other Contracting State and in the district where he performs his functions, obtain, without coercion, evidence in civil or commercial matters from nationals of the State he represents, in aid of judicial proceedings initiated by the courts of the State they represent.

A Contracting State may declare that evidence may be obtained by diplomatic or consular representatives only if authorized to do so, issued at the request of or on behalf of the said representative by the competent authority designated by that State.

Article 16

A diplomatic or consular representative of a Contracting State may also, in the territory of the other Contracting State and in the district where he performs his functions, obtain, without coercion, evidence from nationals of the State in which he performs his functions or of a third State in support of judicial proceedings initiated by the courts of the State he represents, if:

a) the competent authority designated by the State in which the representative performs his functions has given him permission either of a general nature or in a specific case;

b) he complies with the conditions specified by the competent authority in his permit.

A Contracting State may declare that evidence may be obtained in accordance with this article without prior authorization.

Article 17

Any person duly appointed by the Commissioner for civil or commercial matters may obtain, without coercion, evidence in the territory of a Contracting State in support of judicial proceedings initiated by the courts of the other Contracting State, if:

a) the competent authority designated by the State where the evidence is to be obtained gives either general permission or permission for a specific case.,

b) this person complies with the conditions specified by the competent authority in his permit.

A Contracting State may declare that evidence may be obtained under this article without its prior authorization.

Article 18

 A Contracting State may declare that a diplomatic or consular representative or an authorized person designated to obtain evidence in accordance with articles 15, 16 and 17 may apply to the competent authority designated by that State in order to obtain the necessary assistance in obtaining evidence by force. The application may contain such conditions as the applicant State deems possible to include.

If this body grants the request, it applies any coercive measures that are appropriate and prescribed by law for use in domestic judicial proceedings.

Article 19

 The competent authority, by granting the authorization provided for in articles 15, 16 and 17, or by granting the request provided for in article 18, may establish such conditions as it deems appropriate to the time and place of receipt of the evidence. Similarly, he may require that the time, date and place of receipt of the evidence be notified to him in advance within a reasonable period of time; in this case, a representative of the designated authority may be present at the receipt of the evidence.

Article 20

Upon receipt of evidence in accordance with any article of this chapter, the persons involved may be represented by their lawyers.

Article 21

 When a diplomatic or consular representative or authorized representative is authorized to obtain evidence in accordance with the provisions of articles 15, 16 and 17:

a) he can obtain all kinds of evidence, if it does not contradict the laws of the State in which it occurs, or the permission given on the basis of the specified articles, and has the right to take an oath or receive confirmation within the same framework.,

(b) A request for a person to appear or give evidence, if he is not a national of the State in which the proceedings are being conducted, shall be drawn up in the language of the place where the evidence is to be obtained, or accompanied by a translation into that language.,

c) the requirement must inform the person that he can be represented by a lawyer and in any State that has not made a declaration in accordance with art. 18, he is not obliged to appear and give evidence.,

(d) Testimony may be obtained in a manner prescribed by law applicable in the court in which the case is being considered, provided that this method is not prohibited by the legislation of the State where the testimony is being taken.,

(e) The person who is to be questioned may, if he refuses to give evidence, invoke the privileges and official duties provided for in article 11.

Article 22

The fact that an attempt to obtain evidence in accordance with the procedure provided for in this chapter failed due to the person's refusal to testify is not an obstacle to further requesting evidence in accordance with the provisions of the first chapter.

Chapter III. GENERAL PROVISIONS

Article 23

A Contracting State may, at the time of signature, ratification or accession, declare that it does not execute judicial orders that are sent in order to obtain materials known in customary law States as pre-trial disclosure of documents.

Article 24

A Contracting State may, in addition to the central authority, appoint other authorities and determine their competence. However, court orders are always sent to the central authority.

Federal States may appoint several central authorities at their discretion.

Article 25

A Contracting State in which several legal systems operate may designate authorities of one of these systems that will be exclusively competent to execute judicial orders in accordance with this Convention.

Article 26

A Contracting State, if required by constitutional norms, may propose to the requesting State to reimburse the costs and fees associated with the execution of a court order for carrying out the procedure to ensure the appearance of a person to testify, the interrogation of a person and the preparation of an interrogation protocol.

When a State makes a claim in accordance with the provisions of the preceding paragraph, any other Contracting State may invite that State to reimburse similar costs.

Article 27

The provisions of this Convention shall not prevent a Contracting State from:

(a) Stated that judicial orders may be sent by its judicial authority through channels other than those provided for in article 2;

(b) Allowed, within the framework of its legislation or practice, to carry out any action provided for in the Convention in conditions with fewer restrictions;

(c) Has authorized, within the framework of its legislation or practice, the use of other means of obtaining evidence than provided for in this Convention.

Article 28

This Convention does not prevent two or more Contracting States from agreeing among themselves on a derogation.:

 (a) From article 2 with regard to the means of transmitting judicial orders;

 (b) From article 4 with regard to languages that may be used;

 (d) From article 11 with regard to the privileges and limitations of witnesses in providing evidence;

 (e) From article 13 with regard to the means of transmitting documents confirming execution;

 (f) From article 14 with regard to expenses;

 (g) From the provisions of chapter II.

Article 29

 This Convention replaces, in the relations between its parties, which are also parties to one or both Conventions on Civil Procedure, signed in The Hague on July 17, 1905 and March 1, 1954, articles 8-16 of the earlier Conventions.

Article 30

 This Convention does not affect the application of article 23 of the 1905 Convention or article 24 of the 1954 Convention.

Article 31

The supplementary agreements between the Parties to the 1905 and 1954 Conventions shall be considered as applicable to this Convention, unless the States Parties agree otherwise.

Article 32

 Without prejudice to the provisions of articles 29 and 31, this Convention shall not affect conventions to which Contracting States are or will be Parties and which contain provisions on matters covered by this Convention.

Article 33

 Each State has the right, at the time of signature, ratification or accession, to exclude, in whole or in part, the application of the provisions of the second paragraph of article 4 and chapter II. No other reservation is allowed.

A Contracting State may at any time withdraw a reservation it has made, and the reservation shall expire on the sixtieth day following notification of withdrawal.

When a State makes a reservation, any other State affected by it may apply the same rule to the reserving State.

Article 34

A Contracting State may withdraw or amend its declaration at any time.

Article 35

 The Contracting State will, either at the time of depositing its instrument of ratification or accession, or subsequently notify the Ministry of Foreign Affairs of the Netherlands of the designation of the authorities provided for in articles 2, 8, 24 and 25.

The Contracting State shall in the same manner inform the Ministry, as appropriate, of the following:

 (a) The designation of authorities to whom notifications should be sent, from whom authorizations should be obtained and whose assistance may be requested in the request for evidence by diplomatic or consular representatives in accordance with articles 15, 16 and 18;

 (b) The designation of authorities whose authorization may be required under article 17 and who can provide the assistance provided for in article 18;

d) each cancellation or change of appointment and the statements mentioned above;

(e) Withdrawal of any reservations.

Article 36

Difficulties that may arise between the Contracting States in connection with the application of this Convention will be resolved through diplomatic channels.

Article 37

This Convention is open for signature by the States represented at the Eleventh session of the Hague Conference on Private International Law.

It is subject to ratification, and the instruments of ratification must be deposited with the Ministry of Foreign Affairs of the Netherlands.

Article 38

 This Convention shall enter into force on the sixtieth day after the deposit of the third instrument of ratification provided for in the second paragraph of article 37.

The Convention enters into force for each signatory and subsequently ratifying State on the sixtieth day after the deposit of its instrument of ratification.

Article 39

 Any State not represented at the Eleventh session of the Hague Conference on Private International Law, which is a member of the Conference or of the United Nations or a specialized agency of that Organization, or a party to the Statute of the International Court of Justice, may accede to this Convention after its entry into force in accordance with the first paragraph of article 38.

The act of accession must be deposited with the Ministry of Foreign Affairs of the Netherlands.

The Convention shall enter into force for a State which has acceded to it on the sixtieth day after the deposit of its instrument of accession.

The accession will be valid only for the relations between the acceding State and those Contracting States that declare their consent to the accession. This declaration must be deposited with the Ministry of Foreign Affairs of the Netherlands, which sends a certified copy of it through diplomatic channels to each Contracting State.

The Convention enters into force between the acceding State and the State that has declared its consent to such accession on the sixtieth day after the deposit of the declaration of consent to accession.

Article 40

Any State may, at the time of signature, ratification or accession, declare that this Convention applies to all those Territories for whose international relations it is responsible, or to one or more of them. This declaration will be effective from the date of entry into force of this Convention for that State.

Each time thereafter, the Ministry of Foreign Affairs of the Netherlands must be notified of such extension of the scope.

The Convention shall enter into force for those Territories mentioned in the application for extension on the sixtieth day following the notification referred to in the preceding paragraph.

Article 41

 This Convention shall remain in force for a period of five years from the date of its entry into force in accordance with the first paragraph of article 38, including for States that ratify or accede to it later.

If there is no denunciation, it will be extended with tacit consent every five years.

 The Ministry of Foreign Affairs of the Netherlands must be notified of the denunciation at least six months before the expiration of the five-year period.

It may be limited to certain Territories covered by the Convention.

The denunciation will be effective only in respect of the State that declares it. The Convention remains in force for the other Contracting States.

Article 42

 The Ministry of Foreign Affairs of the Netherlands shall notify the States referred to in article 37, as well as the States that have acceded in accordance with article 39, of the following:

(a) Signatures and ratifications provided for in article 37;

(b) The date on which this Convention enters into force in accordance with the provisions of the first paragraph of article 38.;

(d) The extension of the scope referred to in article 40 and the date from which it is considered valid;

(e) The designations, reservations and declarations referred to in articles 33 and 35;

(f) The denunciations referred to in the third paragraph of article 41.

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

DONE at The Hague on March 18, 1970, in English and French, both texts being equally authentic, in a single copy, which will be deposited in the archives of the Government of the Netherlands and a certified copy of which will be sent through diplomatic channels to each of the States represented at the Eleventh session of the Hague Conference on Private International Law.

(Signatures)

I hereby certify that this translation of the Convention into Russian corresponds to the text of the Convention on the Receipt of Evidence Abroad in Civil or Commercial Matters, done in The Hague on March 18, 1970

Director of the Department

international law and cooperation

Ministry of Justice

Republic of Kazakhstan

A. Akhmetov

 RCPI's note!  The text of the Convention in English and French is attached.

President

Republic of Kazakhstan

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