On the signing of the Agreement between the Republic of Kazakhstan and the Socialist Republic of Vietnam on the transfer of convicted persons

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Decree of the President of the Republic of Kazakhstan dated May 16, 2023 No. 220.

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 Socialist Republic of Vietnam on the transfer of convicted persons.

2. Deputy Prime Minister - Minister of Foreign Affairs of the Republic of Kazakhstan Nurtleu Murat Abugalievich to sign on behalf of the Republic of Kazakhstan an agreement between the Republic of Kazakhstan and the Socialist Republic of Vietnam on the transfer of convicted persons, authorizing 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 06/10/2023 No. 253.

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 on May 16, 2023 No. 220

Agreement between the Republic of Kazakhstan and the Socialist Republic of Vietnam on the transfer of convicted persons

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

based on mutual respect for sovereignty and equality,

Desiring to strengthen legal cooperation between the two States,

in order to facilitate the reintegration of convicted persons into society in order to serve their sentences in the State of which they are citizens,

We have agreed on the following:

Article 1 Definitions

In order to implement this Agreement, the following definitions are used:

(a) "Transferring Party" means the Party from which the convicted person may be or has already been transferred;

(b) "Receiving Party" means the Party to which the convicted person may be or has already been accepted;

(c) "Convicted person" means a person sentenced to a fixed term of imprisonment or life imprisonment in accordance with a final verdict rendered by a court of either Party.

Article 2 General provisions

In accordance with the provisions of this Agreement, the Parties may transfer convicted persons to each other for the execution of sentences imposed by the Transferring Party on the territory of the Receiving Party.

Article 3 Central authorities

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

2. The central bodies specified in paragraph 1 of this Article are the Prosecutor General's Office for the Republic of Kazakhstan and the Ministry of Public Security for the Socialist Republic of Vietnam. In the event of a change in the said central bodies in either Party or the transfer of their functions to other State bodies, the other Party shall be informed of such change in writing through diplomatic channels.

Article 4conditions for transfer

1. The transfer of a convicted person may be carried out only if:

(a) The convicted person is a citizen of the Receiving Party;

(b) the person has been convicted of acts which, according to the national legislation of the Receiving Party, also constitute a crime;

(c) at the time when the transfer request is received, the sentence imposed on the convicted person has entered into force and the period of time to be served by the convicted person is at least one year.;

(d) the sentence against the convicted person has entered into force and there are no other criminal proceedings against that person in the Transferring Party.;

(e) there is written consent from the convicted person or his legal representative, if the convicted person himself is unable to consent to the transfer due to age, physical or mental condition; and

(f) both Parties agree to the transfer.

2. In exceptional cases, the Parties may agree to the transfer of a convicted person, even if the period of time to be served by the convicted person is less than that specified in subparagraph (c) of paragraph 1 of this article.

Article 5 Refusal of transfer

1. The transfer of a convicted person may be refused if:

(a) one Party decides that the transfer will harm its sovereignty, security, public order or contradict the fundamental principles of its national legislation;

(b) other civil or administrative proceedings are being conducted against the convicted person in the territory of the Transferring Party.;

(c) the punishment cannot be executed in the territory of the Receiving Party due to the expiration of the limitation period.

2. Each Party has the right to decide at its discretion whether or not it agrees to the transfer requested by the other Party, regardless of the circumstances provided for in paragraph 1 of this Article.

3. The refusal to transfer must be motivated, and the grounds for refusal must be communicated to the other Party.

Article 6question and response

1. In accordance with this Agreement, the convicted person or his legal representative may request the transfer to either Party. The Party receiving such an appeal must notify the other Party in writing.

2. A request for the transfer of a convicted person may be sent by either Party. The requested Party shall immediately notify the Requesting Party of its decision to grant or refuse the requested transfer.

3. Requests and responses for the transfer of a convicted person shall be made in writing.

Article 7 Required documents

1. In the event of a transfer request from one Party and if it is not refused by the other Party, the Transmitting Party shall provide the Receiving Party with the following information:

(a) date and place of request;

(b) the reason for requesting the transfer of a convicted person;

(d) the name and address of the requested authority;

(e) Full name, gender, date and place of birth, nationality and last permanent place of residence of the convicted person requested for transfer.

2. In addition to the request for the transfer of a convicted person, the request must be accompanied by:

(a) a certified copy of the final judgment, including the relevant provisions of the national legislation on which it is based;

(b) information indicating the type and duration of the punishment, as well as the date of its commencement;

(c) information on the length of time served and the parts of the sentence to be served, including the length of pre-trial detention, information on the amendment of the sentence and other information relevant to the execution of the sentence;

(d) written consent to the transfer, which is provided for in subparagraph (e) of paragraph 1 of Article 4 of this Agreement;

(e) information about the convicted person's health status;

(f) information describing the conduct of the person while serving the sentence;

(g) documents confirming the convicted person's compliance with the conditions set out in article 4 of this Treaty;

(H) documents with characteristics and a photograph of the convicted person requested for transfer.

3. The Receiving Party provides the Transmitting Party with the following documents:

(a) documents confirming that the convicted person is a citizen of the Receiving Party;

(b) articles of the law of the Receiving Party indicating that the crime for which the convicted person was sentenced is criminally punishable;

(c) information on the procedure for the execution of the sentence imposed by the Transferring Party in accordance with the national legislation of the Receiving Party.

Article 8 Notification of the convicted person

1. Each Party in its territory shall notify convicted persons to whom this Treaty applies that they may be transferred in accordance with the provisions of this Treaty.

2. Each Party shall notify persons convicted in its territory in writing of the decisions taken by the Transferring or Receiving Parties upon the transfer request provided for in Article 6 of this Treaty.

Article 9The consent of the convicted person and his confirmation

1. The transferring Party guarantees that the convicted person or his legal representative voluntarily agrees to the transfer with full awareness of its legal consequences and confirms this with a statement of consent to the transfer.

2. At the request of the Receiving Party, the Transferring Party shall provide the Receiving Party, through an authorized person, with the opportunity to verify that the convicted person has expressed his consent to the transfer in accordance with the terms of the preceding paragraph of this article.

Article 10 Transfer of a convicted person

If agreement is reached on the transfer, the Parties shall determine the time, place and procedure for the transfer of the convicted person through consultations.

Article 11 Execution of sentence

1. After receiving the convicted person, the Receiving Party, in accordance with its national legislation, continues to execute the sentence imposed by the Transferring Party, in accordance with the type and duration of punishment determined by the Transferring Party.

2. If the nature and duration of the sentence determined by the Transferring Party are incompatible with the national legislation of the Receiving Party, the Receiving Party has the right to change the sentence with the imposition of a penalty provided for by its national legislation for a similar crime. In case of such a change:

(a) The Receiving Party is obliged to acknowledge the facts contained in the verdict of the Transferring Party;

(b) The receiving Party does not have the right to replace a custodial sentence with a monetary penalty.;

(c) the amendment of the verdict by the Receiving Party should be in its essence and, as far as possible, consistent with the verdict of the Transferring Party.;

(d) The modification of the sentence by the Receiving Party should not aggravate the sentence of the Transferring Party and exceed the maximum sentence provided for by the national legislation of the Receiving Party for a similar crime.;

(e) The modification of the sentence should not be limited to the minimum sentence applicable to a similar offence under the national legislation of the Receiving Party; and

(f) the term of imprisonment shall include the term served in the territory of the Transferring Party.

3. In the event of a change of sentence in accordance with paragraph 2 of this Article, the Receiving Party must immediately provide a copy of the official document on the change of sentence to the Transferring Party.

4. The receiving Party has the right, in accordance with its national legislation, to reduce the term of serving the sentence of a convicted person or to release him on parole.

Article 12 Preservation of jurisdiction

1. The transferring Party has the right to retain jurisdiction to amend or overturn sentences imposed by its court.

2. The receiving Party shall immediately modify or cancel the execution of the sentence as soon as it receives any decision from the Transferring Party that leads to the modification or cancellation in accordance with this article of the sentence imposed by the court of the Transferring Party.

Article 13 Pardon and amnesty

Each Party has the right, in accordance with its national legislation, to apply an act of pardon or amnesty to the transferred convicted person, immediately notifying the other Party of its decision.

Article 14 Informing about the execution of the sentence

The Receiving Party shall inform the Transmitting Party of the execution of the sentence in the following cases::

(a) when the sentence is executed;

(b) when the convicted person absconded from custody or died before the end of his sentence;

Article 15Transit

1. In the event that one Party, cooperating with a third country, transits convicted persons through the territory of the other Party, the first Party sends the latter a request for permission for such transits.

2. In the case of using air transport and when landing on the territory of the other Party is not planned, such a permit is not required.

3. The Requested Party, if it does not contradict its national legislation, satisfies the transit request of the Requesting Party.

Article 16 Languages

Any request, document or correspondence regarding the transfer of a convicted person is accompanied by a translation into the official language of the other Party or English. If the petition is filed by a convicted person, it may be written in the language that the person speaks.

Article 17 Validity of documents

To achieve the objectives of this Agreement, any documents sent by the central authority of one Party, affixed with its signature and stamp, are used on the territory of the other Party without any form of confirmation, legalization or apostillation.

Article 18 Expenses

1. The receiving Party bears the costs:

(a) related to the transportation of the convicted person, other than expenses incurred solely in the territory of the Transferring Party; and

(b) related to the continuation of the execution of the sentence after the transfer.

2. The costs associated with transit transportation shall be borne by the Party requesting permission for transit transportation.

Article 19 Dispute settlement

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

If the Parties cannot reach an agreement, the differences are resolved through diplomatic channels.

Article 20 Amendments and additions

By mutual agreement of the Parties, amendments and additions may be made to this Agreement, which are an integral part of this Agreement and are formalized in separate protocols that enter into force in accordance with paragraph 1 of Article 21 of this Agreement.

Article 21 Entry into force and termination

1. This Treaty is subject to ratification and shall enter into force thirty (30) days after the date of receipt through diplomatic channels of the last written notification of its ratification.

2. This Agreement shall be concluded for an indefinite period and shall remain in force until the expiration of one hundred and eighty (180) days from the date on which one of the Parties receives, through diplomatic channels, a written notification from the other Party of its intention to terminate this Agreement.

The termination of this Agreement does not affect the transfer procedures initiated prior to its termination.

3. This Agreement also applies to the transfer of convicted persons whose sentences were passed before its entry into force.

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

COMMITTED in __________ _________ day _________ of the month ___________ year, in two copies, each in Kazakh, Vietnamese and English, and all the texts are equally valid.

In case of discrepancies between the texts, the Parties refer to the English text.

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For the Republic of Kazakhstan

For the Socialist Republic of Vietnam

President

Republic of Kazakhstan

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