On the ratification of the Treaty between the Republic of Kazakhstan and the Socialist Republic of Vietnam on Mutual Legal Assistance in Criminal Matters

Home / RLA / On the ratification of the Treaty between the Republic of Kazakhstan and the Socialist Republic of Vietnam on Mutual Legal Assistance in Criminal Matters

The Law of the Republic of Kazakhstan dated April 5, 2019 No. 244-VI SAM.

To ratify the Agreement between the Republic of Kazakhstan and the Socialist Republic of Vietnam on Mutual Legal Assistance in Criminal Matters, concluded in Hanoi on June 15, 2017.

President Republic of Kazakhstan

K. TOKAEV

contract Agreement between the Republic of Kazakhstan and the Socialist Republic of Vietnam on Mutual legal assistance in criminal Matters

The Republic of Kazakhstan and the Socialist Republic of Vietnam, hereinafter referred to as the Parties,

Desiring to strengthen mutual cooperation for the effective fight against crime,

Paying due attention to human rights and the rule of law,

We have agreed on the following:

Article 1 Scope of cooperation

1. The Parties, in accordance with this Treaty and their respective legislation, undertake to provide each other with mutual legal assistance in criminal matters in full.

2. Such assistance includes:

a) delivery of documents;

b) summoning a witness, expert;

(d) The temporary transfer to the Requesting Party of persons detained in the Requested Party to assist in the investigation or to give evidence;

(e) Taking measures to identify, detain, freeze, seize or confiscate proceeds and/or instruments of crime;

(f) Information exchange;

g) any other forms of assistance consistent with the objectives of this Treaty that do not contradict the legislation of the Requested Party.

3. This Agreement does not apply to:

(a) The extradition or arrest or detention of any person for the purpose of extraditing that person;

(b) The enforcement in the Requested Party of sentences imposed by the courts of the Requesting Party, except in cases permitted by the legislation of the Requested Party and this Treaty;

Article 2 Central authorities

1. In order to implement this Agreement, each of the Parties determines its central authority.

2. Since the entry into force of this Agreement, the following bodies/departments are designated as central authorities:

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

For the Socialist Republic of Vietnam, it is the Supreme People's Prosecutor's Office of the Socialist Republic of Vietnam.

3. In the event of a change in the central authority or the transfer of its functions to another authority, the Parties shall notify each other.

4. In order to implement this Agreement, the central authorities interact with each other directly. If necessary, the Parties can interact through diplomatic channels.

Article 3 Content and form of requests

1. A request for assistance should include the following:

(a) The name and location of the requesting competent authority;

(b) The name and location of the requested competent authority;

c) personal data of the person and his/her address of permanent residence or place of work, the official name and address of the legal entity to which the request relates;

(d) A description of the assistance requested, the purpose of the request, the nature and relevant circumstances of the criminal case, its stage, the penalty prescribed by applicable law, and the time period during which the request is expected to be executed.;

(e) An indication of the applicable legal provisions, including provisions on penalties and limitation periods for criminal liability.

2. A request for assistance may include the following:

a) information about the identity, nationality and place of residence of the person associated with the case or another person who holds the requested information related to the case;

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

c) the grounds for the interrogation, the list of issues to be clarified, and in the case of a request for evidence, a description of documents, records or physical evidence, and, if necessary, a description and information about the identity of the person who is required to provide such documents, records or physical evidence.;

d) the nature of the tasks, list of questions and requirements for the witness or expert called;

e) in the case of a request for search, seizure, identification or confiscation of proceeds and/or instruments of crime, a description of the property sought, information giving grounds to believe that the proceeds and/or instruments of crime are located in the Requested Party and are under the jurisdiction of the Requesting Party, and an effective court order or decision relating to the request;

(f) Measures applicable to the request to locate or seize the proceeds and/or instruments of crime;

g) a description of any specific procedure that must be followed when executing the request;

H) the degree of confidentiality to be respected and the appropriate justification;

i) the purpose, expected date and schedule of the trip of the competent officer/s of the Requesting Party, whose presence is desirable during the execution of the request in the territory of the Requested Party;

j) the verdict or court order and other documents, material evidence or information necessary for the execution of the request.

3. If the Requested Party considers that the information contained in the request is insufficient for its execution, it may request additional information in writing and set a specific date by which such additional information should be received.

4. The request and related communications must be in writing. In urgent cases, with the permission of the Requested Party, the request and related communications may be sent and received by an expeditious means of transmitting information, after which it must be immediately confirmed in writing.

5. The request and supporting documents shall 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.

Article 4 Refusal or postponement of assistance

1. In accordance with this Agreement, the provision of legal assistance must be refused in any of the following circumstances::

a) the execution of the request is contrary to an international agreement to which the Requested Party is a Party, or is contrary to its legislation;

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

c) the request is related to the prosecution of a person for a crime for which he was convicted, acquitted, amnestied or pardoned in the Requested Party, or in the Requested Party, the competent authority has issued a final decision against the same person for the same crime specified in the request.;

(d) The request relates to an offence for which a person cannot be prosecuted due to the expiration of the statute of limitations in accordance with the legislation of the Requested Party.;

(e) The request concerns an act or omission that does not constitute a crime under the law of the Requested Party.

2. The requested Party may delay the provision of legal assistance if its provision interferes with the investigation, criminal prosecution, judicial proceedings or the execution of a court decision in its territory.

3. Before refusing to execute a request or postponing its execution in accordance with this Article, the Requested Party:

(a) Promptly inform the Requesting Party of the reason(s) for the refusal or postponement; and

(b) Consult with the Requesting Party on the provision of legal assistance, subject to certain conditions that the Requested Party considers necessary.

4. If the Requesting Party agrees to provide legal assistance under the conditions established in accordance with the procedure provided for in subparagraph b of paragraph 3 of this Article, it undertakes to comply with them.

Article 5 Execution of requests

1. The Requested Party shall immediately execute the request in accordance with its legislation, as well as the procedure established by the Requesting Party, if this does not contradict the legislation of the Requested Party.

2. Upon request, the Requested Party shall promptly inform the Requesting Party of the date and place of execution of the request for legal assistance.

3. The requested Party shall immediately inform the Requesting Party of the circumstances that may lead to a delay in the execution of the request.

4. The central authority of the Requested Party shall immediately inform the central authority of the Requesting Party of the results of the execution of the request.

Article 6 Service of documents

1. The requested Party shall immediately execute the request for the service of documents in accordance with its legislation.

2. A request for the service of documents requiring the appearance of a victim, witness or expert must be sent to the Requested Party no later than ninety (90) days prior to the date of the required presence in the Requesting Party. In urgent cases, the Requested Party may waive this requirement.

3. The Requested Party shall send the confirmation of the documents' delivery to the Requesting Party. If the service cannot be performed, the Requesting Party must be informed of the reasons.

Article 7 Providing information

1. The requested Party may provide copies of documents or records, except in cases where the Requesting Party requires originals.

2. The requested Party may provide any documents or records to the extent and under the conditions established for its competent authorities.

3. The Parties may transmit, through their central authorities, information and materials about a crime that may lead to the initiation of criminal proceedings in the other Party, if they consider that the latter has jurisdiction to investigate, prosecute and try this crime.

Article 8 Return of materials to the Requested Party

Upon the request of the Requested Party, the Requesting Party shall return the materials submitted in accordance with this Agreement when they are no longer necessary for the criminal case specified in the request.

Article 9 Search and seizure

The requested Party, in accordance with its legislation, searches persons or premises in order to locate, seize and provide the Requesting Party with materials, documents or material evidence in criminal cases under the jurisdiction of the competent authorities of the Requesting Party. In such cases, the rights of bona fide third parties must be respected and protected.

Article 10 Obtaining evidence and testimony

1. The requested Party, upon request and in accordance with its legislation, receives testimony or statements from persons or requires them to provide material evidence for transfer to the Requesting Party.

2. A person called to testify in the Requested Party, in accordance with this Article, has the right to refuse to testify in cases where:

(a) The law of the Requested Party permits or requires a person to refuse to testify in similar circumstances in a process initiated in the Requested Party; or

(b) The law of the Requesting Party permits or requires a person to refuse to testify in similar circumstances in a process initiated in the Requesting Party.

3. If any person in the Requested Party claims that there is a right or obligation to refuse to testify in accordance with the legislation of the Requesting Party, the central authority of the Requesting Party shall, upon request, provide the central authority of the Requested Party with a certified document on the existence of such right or obligation. Such an attestation is sufficient proof of the right or obligation specified therein.

4. For the purposes of this article, obtaining or providing evidence includes the preparation of documents, records, or other materials related to the collection of evidence.

Article 11 Temporary transfer of persons in custody to assist in the investigation or to give evidence to the Requesting Party

1. A person in custody of the Requested Party may, upon request, be temporarily transferred to assist in the investigation or to give evidence to the Requesting Party.

2. The requested Party shall transfer to the Requesting Party a person in custody, provided that:

(a) That person agrees to be transferred to assist in the investigation or to give evidence; and

(b) The Requesting Party agrees to comply with the special conditions required by the Requested Party regarding the detention and security of the person being transferred.

3. If the Requested Party informs the Requesting Party that the transferred person should no longer be detained, that person shall be released and treated as a person provided for in article 12 of this Treaty.

4. A person transferred in accordance with this Article shall be returned to the Requested Party in accordance with the procedure established by agreement of the Parties upon completion of the case in connection with which the transfer was requested, or at an earlier date when the presence of this person is no longer required. The period during which a person was transferred and held in custody by the Requesting Party is counted towards the period of his/her detention in the Requested Party.

Article 12 Organization of assistance of other persons in the investigation or giving evidence to the Requesting Party

1. Upon request, the Requested Party may invite a person who does not fall within the scope of Article 11 of this Treaty to travel to the Requesting Party to assist in the investigation or to testify in the Requesting Party.

2. If the Requested Party is satisfied with the security measures of the person guaranteed by the Requesting Party in writing, the Requested Party may invite the person to assist in the investigation or give evidence to the Requesting Party. This person must be informed of any costs or compensation related to accommodation and movement paid by the Requesting Party. The requested Party must inform the Requesting Party of the person's response and, if the person agrees, take the necessary measures to comply with the request.

Article 13 Special rule

1. A person staying in the Requesting Party in accordance with the provisions of Articles 11 and 12 of this Treaty:

a) should not be detained, prosecuted or punished, nor should he be involved in any civil proceedings in the Requesting Party in respect of any act or omission of a person that was committed prior to the departure of that person from the Requested Party;

(b) Must not, without his consent, give evidence in any criminal proceedings or assist in any investigation other than the criminal cases in respect of which a request has been made.

2. Paragraph 1 of this Article shall terminate if the person, having the opportunity to leave, has not left the territory of the Requesting Party within fifteen (15) days from the date of receipt of the official notification that his/her presence is no longer required, or in the case of his/her voluntary return after the person has left the territory. The requesting Party.

3. A person who does not consent to assist in an investigation or give evidence in accordance with Article 11 or Article 12 of this Treaty shall not bear any responsibility for this or may not be subjected to any coercive measures in the Requesting Party or the Requested Party.

4. A person who agrees to assist in an investigation or give evidence in accordance with article 11 or article 12 of this Treaty may not be prosecuted for his/her testimony, except in cases where he/she knowingly gives false testimony.

Article 14 Proceeds and instruments of crime

1. Upon request, the requested Party shall determine whether the proceeds and/or implements of the alleged crime are located on its territory and notify the Requesting Party of the results.

2. If the alleged proceeds and/or instruments of crime are found, the Requested Party, in accordance with its legislation, shall take measures to seize or confiscate such proceeds and/or instruments of crime. The requested Party may, in accordance with its legislation, return the proceeds and/or instruments of the crime to the Requesting Party. The return of such proceeds and/or instruments of crime is carried out only if there is a final decision made by a court or other competent authority of the Requesting Party.

3. In applying this article, the rights of the relevant bona fide third parties shall be respected and protected in accordance with the legislation of the Requested Party.

Article 15 Handing over documents and receiving testimony through diplomatic or consular officials

Either Party may serve documents and obtain testimony from its citizens on the territory of the other Party through its diplomatic missions or consular offices, provided that the legislation of the other Party is not violated and no coercive measures are taken.

Article 16 Protection of confidentiality and restriction of use

1. The requested Party has the right to request the confidentiality of the information or evidence provided or the sources of the information and evidence provided. Disclosure or use must be carried out in accordance with the legislation of the Requesting Party, subject to the written consent of the Requested Party.

2. The requesting Party has the right to request the confidentiality of the contents of the request for assistance and supporting documents. If the request cannot be executed without violating confidentiality, the Requested Party shall notify the Requesting Party before executing the request. The requesting Party subsequently decides on the possibility of executing the request in whole or in part.

3. The requesting Party shall ensure the protection of the information or evidence received from loss, unauthorized access and use, modification, disclosure or improper use.

4. Without the prior written consent of the Requested Party, the Requesting Party may not use or disclose information or evidence obtained in accordance with this Agreement for purposes other than those specified in the request.

Article 17 Attestation or authentication

1. Documents, copies, records, statements, and other materials must be exempt from any legalization, certification, or authentication requirements.

2. Documents, copies, records, statements and other materials that must be submitted to the Requesting Party are subject to certification only if the Requesting Party requests it. For this purpose, the certification by the central authority of the Requested Party should be sufficient.

Article 18 Representation and expenses

1. Unless otherwise provided in this Agreement, the Requested Party represents the interests of the Requesting Party during the execution of the request.

2. The costs related to the provision of legal assistance in accordance with this Agreement shall be borne by the Parties in accordance with their legislation.

3. The Requested Party shall bear the costs associated with the execution of the request for assistance, with the exception of the following costs, which shall be borne by the Requesting Party:

a) expenses arising from the execution of the request in accordance with article 11 of this Treaty;

(b) The costs of travel and stay in the Requesting Party of the persons referred to in article 12 of this Treaty;

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

d) Reasonable expenses and fees of experts;

e) Costs and fees for translation, interpretation and copying costs;

(f) The costs of storing, transferring seized items and returning proceeds of crime;

(g) The costs of establishing and conducting videoconferences or television communications, as well as interpreting and translating such proceedings.

4. When the execution of a request entails unforeseen expenses, the Parties shall consult in order to agree on the conditions under which the request can be executed and the criteria for dividing the corresponding costs.

Article 19 Other arrangements

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

2. This Treaty does not prevent one Party from providing legal assistance to the other Party in accordance with other international treaties to which they are parties.

Article 20 Consultations

1. In order to implement this Agreement most effectively, the central authorities of the Parties shall hold consultations by mutual agreement. The central authorities of the Parties may also agree on other practical measures that may be necessary to facilitate the implementation of this Agreement.

2. Any disputes related to the interpretation or application of this Agreement shall be resolved through consultations between the Parties.

Article 21 Entry into force, application and termination of the Treaty

1. This Agreement shall be concluded for an indefinite period and shall enter into force on the thirtieth (30) day after 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. Amendments and additions may be made to this Agreement by mutual agreement of the Parties. Any amendments and additions are an integral part of this Agreement and shall enter into force in accordance with the procedure provided for in paragraphs 1 of this article.

3. This Agreement shall terminate upon the expiration of six (6) months from the date of receipt by one of the Parties through diplomatic channels of a written notification by the other Party of its intention to terminate this Agreement. In the event of termination of this Agreement, the legal assistance measures that were initiated during its validity period remain in force until they are fully implemented.

4. 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 by their respective States, have signed this Treaty.

Done in Hanoi on June 15, 2017, in two copies, each in the Kazakh, Vietnamese and English languages, all texts being equally authentic. In case of divergence of interpretation, the English text will prevail.

For the Republic of Kazakhstan

For the Socialist Republic of Vietnam

I confirm the authenticity of the text of the Agreement between the Republic of Kazakhstan and the Socialist Republic of Vietnam on Mutual Legal Assistance in Criminal Matters, signed in Hanoi on June 15, 2017 in Kazakh, Vietnamese and English with the text in Russian.

Head of the International Cooperation Department The General Prosecutor's Office Republic of Kazakhstan

G. Koigeldiev

President

Republic of Kazakhstan

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