On the signing of the Agreement between the Republic of Kazakhstan and the Republic of Serbia on the transfer of convicted persons
Decree of the President of the Republic of Kazakhstan dated August 20, 2015 No. 71
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 DECREE: 1. To approve the attached draft Agreement between the Republic of Kazakhstan and the Republic of Serbia on the transfer of convicted persons. 2. To authorize the Prosecutor General of the Republic of Kazakhstan Asanov Zhakip Kazhmanovich to sign on behalf of the Republic of Kazakhstan An agreement between the Republic of Kazakhstan and the Republic of Serbia on the transfer of convicted persons, allowing for amendments and additions that are not of a fundamental nature. The footnote. Paragraph 2 as amended by Decree of the President of the Republic of Kazakhstan dated 06/15/2016 No. 281.3. This Decree comes 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 dated August 20, 2015 No. 71
Project
Agreement between the Republic of Kazakhstan and the Republic of Serbia on the transfer of convicted persons
The Republic of Kazakhstan and the Republic of Serbia, hereinafter referred to as the "Contracting States", wishing to promote effective cooperation in the field of transfer of convicted persons in order to facilitate their rehabilitation and social reintegration, believing that this goal can be achieved through the conclusion of a bilateral agreement establishing the possibility for convicted persons to serve their sentences in their public environment, have agreed as follows:
Article 1 General provisions
1. The Contracting States undertake, under the conditions set out in this Treaty, to cooperate as much as possible in the transfer of convicted persons. 2. A person convicted in the territory of one Contracting State may be transferred, in accordance with the provisions of this Treaty, to the territory of another Contracting State for the execution of the sentence imposed. To this end, this convicted person or his legal representative may express to both the Sentencing State and the State of Execution of the sentence the desire of the convicted person to transfer to the State of his nationality in accordance with this Treaty.
Article 2 Definitions
For the purposes of this Treaty: (a) "convicted person" means any person, including minors, who is serving a custodial sentence in the territory of any of the Contracting States; (b) "sentence" means any final judicial decision imposing a custodial sentence for the commission of an offence; (c) "Sentencing State" means the Contracting State in which the person was sentenced and from where he was or may be transferred.; (d) "State of enforcement" means a Contracting State to whose territory a convicted person may be or has already been transferred for the execution of a custodial sentence.
Article 3 Central authorities
1. For the purposes of this Treaty, the central authorities designated by the Contracting States shall interact directly. 2. The central authorities are: for the Republic of Kazakhstan - the Prosecutor General's Office of the Republic of Kazakhstan; for the Republic of Serbia - the Ministry of Justice of the Republic of Serbia. 3. In the event of a change in the names of their central bodies or the transfer of their functions to other State bodies, the Contracting States shall notify each other through diplomatic channels.
Article 4conditions for transfer
A convicted person may be transferred in accordance with this Treaty if the following conditions are met: (a) the person is a national of the State of Enforcement; (b) the sentence is final and enforceable; (c) there are no judicial proceedings against the convicted person in the Sentencing State; (d) at the time of receipt of the transfer request The remaining term of serving a custodial sentence is at least one (1) year. In exceptional cases, the transfer may be carried out even if the term of punishment to be served by the convicted person is less than that specified in this subparagraph; e) the convicted person or when, due to age, physical or mental condition, the person cannot independently express his consent, the legal representative of the convicted person consents to the transfer; f) the acts of, for which a person has been convicted in accordance with the national legislation of both Contracting States, constitute an offence; (g) Both Contracting States agree to the transfer of the convicted person.
Article 5conditions for refusal of transfer
The transfer may be refused if: a) The sentencing State considers that the transfer may be detrimental to sovereignty, security, public order or contrary to its national legislation; (b) The punishment under the national legislation of the executing State differs significantly from the punishment imposed in the sentencing State; (c) The convicted person has not compensated for the damage caused by his crime or has not paid the costs that it is obliged to compensate in accordance with the verdict of the court.; (d) In the State of enforcement of the sentence, the person is being prosecuted for the same offence or has been convicted by a court that has entered into legal force.
Article 6 Transfer resolution
1. The Contracting States shall decide on the transfer in accordance with this Treaty and their national legislation. 2. In case of refusal to transfer, such a decision must be motivated. 3. When deciding on transfer, among other things, the nature and severity of the crime, the circumstances in which it was committed, the possibility of rehabilitation and social reintegration, the age and state of health of the convicted person, his marital status, and fulfillment of obligations regarding compensation for victims are taken into account.
Article 7 Obligation to inform about the results of the review of the request and accompanying documents
1. The convicted person to whom this Treaty may be applied must be informed by the Sentencing State of the possibility of transfer in accordance with this Treaty and of its legal consequences. 2. If the Sentencing State consents to the transfer of the convicted person, it shall inform the State of Enforcement thereof and send the following documents and information to the State of enforcement: a) information on the surname, first name, date and place of birth of the convicted person; (b) Information on the type of punishment, the start and end dates of the execution of the sentence; (c) Information on the terms of the sentence served and to be served, including the terms of pre-trial detention, as well as other information necessary for the execution of the sentence; (d) the original of the court verdict that has entered into legal force and is to be executed, or a certified copy thereof, as well as other court decisions; e) certified extracts from the legislation applied to the convicted person; (f) If necessary, a medical and social report on the convicted person, information on his treatment in the Sentencing State and recommendations for subsequent treatment; (g) A statement provided for in paragraph (e) Article 4 of this Treaty, which contains the consent of the convicted person to his transfer. 3. If the Executing State, after examining the documents sent by the Sentencing State, considers that the transfer of the convicted person is possible, it shall send the following documents and information to the sentencing State: (a) confirmation that the convicted person is a national of the Executing State; (b) certified extracts from its legislation, which will be applied. 4. If the executing State considers that the documents and information provided by the Sentencing State are insufficient, it may request additional information. 5. If the transfer request is granted, the Contracting States shall immediately agree on the date, place, time and other conditions of transfer. Simultaneously with the transfer of the convicted person, his personal belongings are transferred. 6. The convicted person or his legal representative shall be informed in writing of the decision taken upon the request for his transfer.
Article 8The agreement and its verification
1. The sentencing State must take the necessary measures to ensure that the convicted person consents to the transfer provided for in paragraph (e) Article 4 of this Treaty, does so voluntarily and with full awareness of the legal consequences of such transfer. 2. The sentencing State shall provide the diplomatic representative of the executing State with the opportunity to verify that such consent has been given in compliance with the conditions set out in paragraph 1 of this article.
Article 9The consequences of transfer for the Sentencing State
1. The reception of a convicted person by the Sentencing State presupposes the termination of the execution of the sentence by the Sentencing State. 2. The sentencing State shall not have the right to execute its sentence when the State of enforcement considers its execution completed.
Article 10The consequences of transfer for the State of execution of the sentence
1. The State of enforcement of the sentence shall continue the execution of the sentence in accordance with its national legislation. 2. If the punishment, by its nature and duration, does not correspond to the punishment provided for by the national legislation of the State of enforcement of the sentence, then, in accordance with its national legislation, it replaces it with a punishment that maximally corresponds to the punishment provided for a similar crime. In this case, by its nature or duration, it should not be stricter than that determined by the verdict of the Sentencing State, or exceed the maximum sentence provided for by the national legislation of the State of enforcement of the sentence for a similar crime. Also, the punishment should not be limited to the minimum term of punishment applicable to a similar crime under the national legislation of the Executing State. The State of enforcement of the sentence must send its judicial decision to the sentencing State. 3. The execution of the sentence and the consideration of issues of parole in respect of the transferred person is carried out in accordance with the national legislation of the State of execution of the sentence.
Article 11 Amnesty, pardon or other mitigation measures
Each of the Contracting States has the right, in accordance with its national legislation, to grant amnesty, pardon or apply other mitigation measures against the transferred person.
Article 12 Review of the verdict
Only the Sentencing State has the right to review its sentence.
Article 13 Termination and modification of sentence
The executing State has an obligation to terminate the execution of the sentence as soon as it is informed by the Sentencing State of any decision resulting in the termination of the sentence. The same will be applied in case of a change of sentence.
Article 14information about the execution of the sentence
The executing State provides information to the Sentencing State regarding the execution of the sentence in the following cases: (a) if it considers the execution of the sentence completed; (b) if the convicted person escaped or died before the sentence was fully executed; (c) if the Sentencing State requests such information.
Article 15Transit
1. The Contracting States, in accordance with their national legislation and without prejudice to their interests, have the right to allow the transit through their territory of a convicted person transferred to another Contracting State by a third State. 2. To do this, the Requesting State shall send to the Requested State, through the central authorities or, in particularly urgent cases, through the International Criminal Police Organization (Interpol), a transit request containing the identification data of the person being transported, information about his nationality and a summary of the circumstances of the case. The transit request is accompanied by a copy of the document confirming the transfer of the person. 3. The requested State must detain the person being transported within its territory. 4. A transit permit is not required if it is carried out by air and landing on the territory of the transit State is not planned. In the event of an unplanned landing on the territory of the transit State, the transit State shall immediately notify the transit State, and the transit State shall detain the person being transported for up to fifteen (15) days pending a request for transit authorization. 5. If no transit request is received within the time limits specified in paragraph 4 of this Article, the person shall be released unless otherwise agreed by the Contracting States.
Article 16 Languages and expenses
1. The request for the transfer of a convicted person and the necessary documents must be drawn up in the language of the Requesting State and accompanied by a translation into the language of the Requested State or in English. If the petition is filed by a convicted person, it may be written in the language he or she speaks. 2. The costs associated with the implementation of this Treaty shall be covered by the State of Execution of the sentence, with the exception of those incurred on the territory of the Sentencing State. 3. The costs of transit shall be borne by the Requesting State. 4. The costs associated with the detention of a convicted person during his transit through the territory of the transit State shall be borne by the Requested State.
Article 17The relationship of this Treaty with other international agreements
This Treaty does not affect the rights and obligations of the Contracting States arising from any international agreements to which they are parties.
Article 18 Dispute resolution
Any differences arising in the course of the application or interpretation of this Treaty shall be resolved through consultations and negotiations between the central authorities of the Contracting States.
Article 19 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 States have completed the procedures necessary for its entry into force. 3. This Treaty may be amended and supplemented by mutual agreement of the Contracting States, which are formalized by separate protocols, which are its integral parts and enter into force in accordance with the procedure provided for in 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 from the other Contracting State of its intention to terminate it. 5. In the event of termination of this Agreement, the procedures for the transfer of persons that were initiated during its validity period remain in force until they are fully implemented. 6. This Treaty also applies to the enforcement of sentences imposed before its entry into force.
IN WITNESS WHEREOF, the undersigned, being duly authorized thereto, have signed this Agreement.
COMMITTED in ________________ ___ _______________ 20__ in two copies, each in Kazakh, Serbian and English, all texts being authentic. In case of disagreement in the interpretation of the provisions of this Agreement, the English text shall prevail.
For the Republic of Kazakhstan
For the Republic of Serbia
President
Republic of Kazakhstan
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