On ratification of the Convention between the Republic of Kazakhstan and the Kingdom of Spain on Mutual Legal Assistance in Criminal Matters

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Law of the Republic of Kazakhstan dated October 19, 2012 No. 45-V

To ratify The Convention between the Republic of Kazakhstan and the Kingdom of Spain on Mutual Legal Assistance in Criminal Matters, signed in Astana on June 17, 2011.

President of the Republic of Kazakhstan

Convention between the Republic of Kazakhstan and the Kingdom of Spain on Mutual Legal Assistance in Criminal Matters

(Official website of the Ministry of Foreign Affairs of the Republic of Kazakhstan - Entered into force on December 1, 2012)

The Republic of Kazakhstan and the Kingdom of Spain, hereinafter referred to as the Parties, desiring to maintain and strengthen the ties uniting both States, desiring to develop more effective cooperation between the two States in the prevention, investigation and prosecution of criminal offences, especially in the fight against organized crime and terrorism, seeking to improve coordination and mutual assistance in criminal matters between the two The States, in accordance with their laws and regulations, have agreed on the following:

Part I. GENERAL PROVISIONS

Article 1. Scope of application

1. The purpose of this Convention is to regulate the provision of mutual legal assistance between the competent authorities of both Parties related to criminal matters. 2. In accordance with the provisions of this Convention and with their respective laws and regulations, the Parties shall provide each other with any legal assistance in the prevention, investigation and prosecution of crimes, as well as other assistance in criminal proceedings that falls within the competence of the law enforcement authorities of the requesting Party at the time when such assistance is required. 3. Assistance is also provided in accordance with this Convention in respect of criminal offences relating to taxes, customs duties, currency control and other financial matters. 4. This Convention does not apply to: (a) Detaining persons for the purpose of extradition or requesting extradition; (b) Executing court decisions in criminal cases, including the transfer of convicted persons; (c) Providing direct assistance to individuals or third States. 5. This Convention is concluded solely for the purposes of mutual assistance between the Parties. Its provisions do not grant any rights to individuals to obtain, seize, conceal evidence or obstruct the execution of a request for assistance. 6. Assistance is provided regardless of whether or not the circumstance that gave rise to it is a criminal offense in accordance with the legislation of the requested Party, except in cases where the required assistance involves a search, arrest or release, which must be classified as a circumstance that gave rise to criminal prosecution for a criminal offense in the territory of the requested Party.

Article 2. Central authorities

1. Each Party shall designate a central authority that is directly responsible for sending and receiving a request for assistance in accordance with this Convention. 2. The central authority of Kazakhstan is the Prosecutor General's Office. The Spanish central authority is the Ministry of Justice. Each of the Parties has the right to change the specified central authority. 3. For the effective implementation of the provisions of this Convention, the central authorities shall communicate directly with each other using modern technologies in order to solve problems arising during the execution of a request for assistance. 4. The Parties may use diplomatic channels to send or receive a request for assistance or information related to its execution, if deemed necessary due to the special circumstances of the case.

Article 3. Scope of assistance

1. Help includes: (a) Locating and identifying persons; (b) Serving court documents; (c) Obtaining evidence, including bills of exchange, documents or archives; (d) Searching and seizing items; (e) Obtaining witness and expert testimony, as well as testimony from the accused directly or via video link; (f) sending notifications to witnesses, experts and accused persons for voluntary attendance at the requesting Party; (g) The temporary transfer of detainees in order to assist the requesting Party; (h) The search, freezing, confiscation and seizure of proceeds of crime and tools used for such purposes; (i) The delivery of property, including the return of items and the provision of evidence for temporary use in court; (j) the exchange of information on crimes and the initiation of criminal proceedings in the territory of the requested Party; j) the exchange of information concerning the criminal record and forensic records of citizens of the other Party; (l) Any other forms of assistance provided for in this Convention that do not contradict the legislation of the requested Party. 2. This Convention does not grant the competent authorities of the requesting Party the right to perform in the territory of the requested Party functions that, according to the legislation of that Party, are assigned to their own competent authorities, except as provided for in article 14 of this Convention.

Article 4. Refusal of assistance

1. The requested Party may refuse the requesting Party in the following cases:: (a) The request for assistance concerns a crime of a political nature. Terrorist and other crimes that the requested Party may consider to be excluded from the category of crimes of a political nature in accordance with an international treaty to which it is a party will not be interpreted as "crimes of a political nature"; b) the request for assistance concerns a military offence, which is not a crime under criminal law.; (c) The execution of a request for assistance may prejudice the sovereignty, security, public order or other essential interests of the State; (d) There are serious grounds to believe that the request for assistance is aimed at investigating or criminalizing a person based on his race, religion, nationality, historical origin, political beliefs, gender, or with the intention to endanger this a person is subject to any form of discrimination, if the position of such a person may be harmed for any of these reasons.; (e) The request for assistance refers to an indictment against a person on the basis of which he was convicted, pardoned or acquitted in the territory of the requested Party, or the person cannot appear in court due to the expiration of the statute of limitations if such a criminal offence was committed within the jurisdiction of the requested Party; (f) A request for assistance providing for coercive measures if the act or omission imputed to guilt is not classified as a criminal offense in accordance with the legislation of the requested Party. 2. The requested Party refuses to provide assistance if the request for assistance refers to a crime punishable by death in the territory of the requesting Party, but for which the death penalty is not imposed or applied in the territory of the requested Party, unless the requesting Party provides guarantees that the requested Party considers sufficient that the death penalty is not imposed. will be imposed or, if imposed, will not be enforced. 3. The requested Party may refuse to provide assistance if the request for assistance refers to a crime punishable by life imprisonment or indefinite imprisonment under the law of the requesting Party, unless the requesting Party provides guarantees that will be considered sufficient for the requested Party that such punishment will not be imposed. The sentence is imposed or the imprisonment will not be for life. 4. The requested Party may refuse to provide assistance if the requesting Party is unable to comply with the conditions related to confidentiality or any restrictions on the use of the material provided in accordance with the provisions of Article 9 of this Convention. 5. The requested Party may defer assistance if the execution of the request for assistance may interfere with the ongoing investigation or proceedings in the requested Party. 6. Until the refusal or postponement of assistance in accordance with this article, the requested Party, through its central authority: (a) Promptly inform the requesting Party of the reasons for the refusal or postponement; (b) Consult with the requesting Party to determine whether assistance can be offered within the time and conditions deemed necessary by the requested Party. 7. If the requesting Party claims that the assistance will be provided on time and under the conditions set out in accordance with subparagraph (b) of paragraph 6 of this Article, these terms and conditions must be fulfilled.

Part II. PROCEDURE AND EXECUTION OF REQUESTS FOR ASSISTANCE

Article 5. Competent authorities for requests for assistance

According to this Convention, the competent authorities of the requested Party for requests for assistance are those that, in accordance with its legal system, have the right to investigate and prosecute the crime that is the subject of the request for assistance.

Article 6. Form of request for assistance

1. Requests for assistance shall be made in writing and signed by the head of the competent authority. In the event of an emergency, requests for compliance can be transmitted by fax, e-mail, or any other means and provided with written proof of their contents. The authorization of these requests for assistance is confirmed by the original document within 10 days from the date of their sending. 2. Requests for assistance and all documents attached to them must be accompanied by a translation into the language of the requested Party.

Article 7. Content of the request for assistance

1. Requests for assistance contain the following information: (a) The name of the body conducting the investigation, recovery or judicial proceedings to which the request for assistance relates; (b) A description of the subject matter and nature of the investigation, trial or investigation, including a brief description of the crime; (c) The most detailed description of evidence, information, and any other type of assistance requested.; (d) A statement of the purpose for which evidence, information, or any other type of assistance is requested, and their relationship to the circumstances currently under investigation; (e) A statement or text of the relevant laws on which the investigation or judicial proceedings are based. 2. If necessary, requests for assistance may include: (a) Information about the identity and location of the person in respect of whom assistance has been requested; (b) An indication of that person's connection to the criminal case and, if necessary, an indication of the form in which the notification served or the accepted application is executed.; (c) A list of questions to be asked of the witness or a detailed description of the case in which the witness will be questioned; (d) Information on the costs and compensation to which the person being summoned is entitled; (e) A detailed description of the place or person to be searched, the objects to be seized, and the property to be confiscated or arrest; f) confidentiality requirements for the request for assistance; (g) A description of any special actions that the requesting Party would like to be performed in the execution of the request for assistance; (h) A list of the competent authorities of the requesting Party that will participate in the execution of the request for assistance to the requested Party; (i) the time period during which the request for assistance must be executed, and the justification for in case of extreme urgency; j) any other information that may be useful to the requested Party in executing the request for assistance.

Article 8. Execution of requests for assistance

1. Requests for assistance are sent directly to the central authority of the requested Party, which promptly transmits it to the competent authorities for execution. 2. The requested Party shall immediately inform the requesting Party of any circumstances that may cause a significant delay in the preparation of a response to a request for assistance. 3. In accordance with the provisions of Article 4 of this Convention, the requested Party shall also promptly inform about the reasons for postponing or refusing a request for assistance and the conditions under which, if necessary, it can be executed. 4. When executing a request for assistance, the requested Party shall take measures to maintain confidentiality in accordance with the conditions set out in Article 9 of this Convention.

Article 9. Confidentiality and restrictions on the use of information

1. At the request of the requesting Party, the requested Party shall maintain confidentiality with respect to the request for assistance, its contents and accompanying documents, and any measures taken in fulfilling the request for assistance. If the request for assistance cannot be executed without violating confidentiality, the requested Party shall notify the requesting Party, which will determine the possibility of executing the request for assistance. 2. Upon a request for assistance from the requested Party, the requesting Party shall maintain confidentiality with respect to evidence and information obtained in the execution of the request for assistance, except in cases where evidence and information are necessary for legal proceedings or investigations specified in the request for assistance. 3. The requested Party may condition the execution of a request for assistance, depending on certain conditions related to the use of information or evidence. In any case, the requesting Party may not use the evidence obtained for purposes other than those specified in the request for assistance without the prior consent of the competent authority of the requested Party.

Article 10. Applicable legislation

1. The request for assistance is executed in accordance with the legislation of the requested Party and within the framework of this Convention. 2. At the request of the requesting Party, the requested Party, when executing a request for assistance, shall comply with the prescribed procedure and formalities specified in the request for assistance, provided that they do not contradict the legislation of the requested Party.

Article 11. Information about the status of the request for assistance

1. Upon request for assistance from the central authority of the requesting Party, the central authority of the requested Party shall send, within a reasonable period of time, information on how to execute the request for assistance or the stage of execution of the request for assistance. 2. The central authority of the requested Party shall immediately inform the central authority of the requesting Party of the results obtained in the execution of the request for assistance and forward all information and evidence received to the said central authority. 3. If the requested Party is unable to comply with the request for assistance in full or in part, the central authority of the requested Party shall immediately inform the central authority of the requesting Party of these circumstances and the reasons.

Article 12. Expenses

1. The requested Party shall cover the costs associated with the execution of the request for assistance. 2. In case of unforeseen expenses incurred in fulfilling the request for assistance, the central authority of the requested Party may offer other forms of financing to the requesting Party. 3. In any case, the requesting Party shall pay the costs and fees for the relevant expert reports, transfers, extraordinary expenses related to the use of special procedures, travel expenses and travel expenses to persons traveling to the requesting State, in accordance with the provisions of this Convention.

Part III. FORMS OF ASSISTANCE

Article 13. Notifications

1. If the purpose of the request for assistance is to serve a notice of a court decision, the competent authorities of the requested Party must deliver this notice in accordance with their procedural legislation. 2. If the purpose of the request for assistance is to deliver items or documents, the competent authorities of the requested Party are required to deliver these items or documents sent to them by the requesting Party for this purpose. 3. Notifications are issued in one of the ways provided for by the legislation of the requested Party, or in the manner provided by the requesting Party, if this does not contradict the legislation of the requested Party. 4. Delivery is confirmed by notification of receipt, dated and signed by the addressee, or by confirmation by the competent authority of the procedure. This confirmation is sent to the requesting Party. If delivery is not possible, an explanation of the reasons is sent.

Article 14. Appearance in the requested Party

1. Any person who is present in the territory of the requested Party and who is invited to make a statement or give evidence, present evidence or submit an expert opinion, shall be brought before the competent authorities of the requested Party in accordance with the legislation of the latter. The requested Party submits a subpoena to a person who may be subject to punitive sanctions provided for by law. 2. The competent authority of the requested Party authorizes, under its control, the presence of representatives of the requesting Party indicated in the request for assistance during the judicial proceedings and gives them the right to ask questions. The hearing is conducted in accordance with the judicial procedures provided for by the legislation of the requested Party or in a special way upon request for assistance from the requesting Party. 3. If the person referred to in paragraph 1 of this Article invokes immunity, privileges or disability in accordance with the law of the requested Party, the competent authority of the requested Party shall decide on the legality of such reference before fulfilling the request for assistance and shall forward the said decision to the requesting Party through the central authority. 4. If the person referred to in paragraph 1 of this Article invokes immunity, privileges or disability in accordance with the law of the requested Party, the competent authority of the requested Party shall inform the requesting Party of this fact through its central authority in order to allow the competent authorities of the requesting Party to take appropriate measures. 5. In the cases provided for in this Article, the requested Party shall inform the requesting Party in advance of the date and place of execution of the request for assistance. The competent authorities shall consult with each other, as necessary, through the central authorities, in order to establish a date suitable for the competent authorities of both Parties.

Article 15. Appearance before the authorities of the requesting Party

1. If the judicial authorities of the requesting Party require the appearance of a witness, expert or accused on their territory to give evidence or require the provision of information of a different nature, this is stipulated in the request for assistance. The competent authorities of the requested Party shall invite the said person to appear before the competent authority in the territory of the requesting Party and inform the requesting Party of the person's response as soon as possible. 2. Requests for assistance in summoning a witness, expert or accused to court, who must arrive at the competent authority of the requesting Party, must be received by the central authority of the requested Party in advance of the date set for appearance. 3. The subpoenas referred to in this article must not contain threats of penalties or punitive sanctions, otherwise such provisions will not apply if a witness, expert or accused fails to appear. 4. The request for assistance by the competent authorities of the requesting Party specifies the travel and accommodation costs that they will reimburse.

Article 16. Appearance of detained persons to the authorities of the requesting Party

1. Any person detained in the territory of the requested Party, whose presence is required in the territory of the requesting Party in order to provide assistance in accordance with the provisions of this Convention, shall be transferred to the territory of the requesting Party, provided that the said person and the central authority of the requested Party provide their express consent. If the detainee does not agree, then he cannot be subjected to any sanctions or punitive measures. 2. Transfer may be refused if the presence of the detainee is necessary at the same time for a criminal case in the territory of the requested Party, if transfer may lead to an increase in the period of detention, or if for some reason the central authority of the requested Party considers transfer inappropriate. 3. The competent authorities of the requesting Party must keep the transferred person in custody at all times when he is in the territory of their State. The period of time that a detainee spends in the requested Party is deducted from his prior arrest or sentence. If the authorities of the requested Party notify the requesting Party that the person in question should no longer be in custody, the person in question should be released immediately, and the provisions of article 15 of this Convention shall apply to such person. 4. The authorities of the requesting Party shall return the transferred person within the time limits set by the requested Party, and in any case, if his presence is no longer necessary in the territory of the requesting Party.

Article 17. Video conference

The parties may agree to accept applications via videoconference in accordance with the conditions set out in each specific case.

Article 18. Immunity

1. No witness or expert, regardless of his nationality, invited to appear before the judicial authorities of the requesting Party, may be charged, arrested or subjected to any other form of imprisonment in the territory of that Party for acts or previous convictions that occurred prior to his departure from the territory of the requested Party. 2. No person, regardless of his nationality, invited to the judicial authorities of the requesting Party to answer for the events that served as the basis for the trial, may be charged, arrested or subjected to any other deprivation of liberty in the territory of that Party for acts or previous convictions that took place before his departure from the territory of the requested Party, which are not They were provided for in the agenda. 3. The immunity provided for in this article must be terminated at the moment when a person, having the opportunity to leave the territory of the requesting Party, remains within the specified territory for 15 calendar days after his presence is no longer required, or returns to this territory after he has left it.

Article 19. Precautionary measures

1. The competent authority of one of the Parties, through its central authority, may request the establishment or adoption of precautionary measures with respect to assets that are the direct or indirect means or results of a crime located in the territory of the other Party. 2. The requested Party shall take precautionary measures with respect to the specified property, as provided for by its legislation. 3. The requested Party undertakes to resolve, in accordance with its legislation, any requests for the protection of the rights of bona fide third Parties in respect of property subject to the measures provided for in paragraphs 1 and 2 of this Article. 4. The competent authority of the requested Party shall establish reasonable time limits for the duration of the requested measures, depending on the circumstances.

Article 20. Voluntary exchange of information

1. The Parties may, without prior request for assistance, exchange information in relation to criminal offences if they consider this information useful in initiating or conducting an investigation or judicial proceedings. 2. The Party providing the information may set conditions regarding the use of such information by the receiving Party. Acceptance of the specified information means that the receiving Party is obligated to fulfill the specified conditions.

Article 21. Transfer of criminal cases

1. The Parties may, through their central authorities, send case materials in order to initiate proceedings by the law enforcement authorities of the other Party, if they consider that the said Party has a priority position for the investigation and trial of the crime. 2. The requested Party shall notify the requesting Party of the proceedings taken in respect of the transferred case materials and, if necessary, send copies of the decisions taken.

Article 22. Certification and authentication

For the purposes of this Convention, documents transmitted through central authorities do not require confirmation, authentication or any other similar formalities.

Article 23. Consultations

The central authorities of both Parties shall consult in order to ensure more effective implementation of this Convention and agree on practical measures necessary to facilitate its implementation.

Article 24. Dispute resolution

In case of disputes and disagreements on the interpretation and application of this Convention, the Parties shall resolve them through consultations between the central authorities. In case of failure to reach an agreement, diplomatic channels are used.

Part IV. FINAL PROVISIONS

Article 25. Compatibility with other international agreements or forms of cooperation

1. This Convention does not prevent the Parties from assisting each other in accordance with the provisions of other international treaties to which they are parties. 2. This Convention does not prevent the Parties from developing other forms of cooperation in accordance with their legislation.

Article 26. Entry into force

This Convention shall enter into force on the first day of the second month following the date of receipt through diplomatic channels of the last written notification that the Parties have completed the internal procedures necessary for its entry into force.

Article 27. Term and termination

1. This Convention is concluded for an indefinite period. 2. This Convention shall remain in force until the expiration of six months from the date of receipt by one of the Parties through diplomatic channels of written notification by the other Party of its intention to terminate this Convention. The termination of this Convention does not affect the execution of requests for assistance pending. IN CONSEQUENCE of WHICH the undersigned, being duly authorized for this purpose by their respective Governments, have signed this Convention. Done in Astana, June 17, 2011, in two originals, each in Russian and Spanish, all texts being equally authentic.

For the Republic of Kazakhstan For the Kingdom of Spain

RCPI's note!  The following is the text in Spanish.

President

Republic of Kazakhstan

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