On Ratification of the Protocol to the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of January 22, 1993

Home / RLA / On Ratification of the Protocol to the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of January 22, 1993

Law of the Republic of Kazakhstan dated June 24, 1999 No. 399

To the attention of users!  3. The Agreement between the States Parties to this Convention shall cease to be in force. The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of January 22, 1993 and The Protocol to it dated March 28, 1997.

To ratify the Protocol to the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of January 22, 1993, done in Moscow on March 28, 1997.

President of the Republic of Kazakhstan

Protocol to the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of January 22, 1993

(Bulletin of International Treaties of the Republic of Kazakhstan, 2002, No. 10) (Entered into force on September 17, 1999)

It is subject to ratification and will enter into force in accordance with the procedure provided for in article 83 of the above-mentioned Convention (see paragraph 14)

Signed: Republic of Azerbaijan, Republic of Armenia, Republic of Belarus, Georgia, Republic of Kazakhstan, Kyrgyz Republic, Republic of Moldova, Russian Federation, Republic of Tajikistan, Republic of Uzbekistan, Ukraine

notifications have been submitted:

Kyrgyz Republic - deposited on March 2, 2005 (domestic procedures are being carried out). The instruments of ratification have been handed over:

Republic of Belarus - deposited on December 18, 1997; Ukraine - deposited on September 22, 1998; Republic of Kazakhstan - deposited on August 18, 1999; Republic of Tajikistan - deposited on January 18, 2000; Republic of Armenia - deposited on May 11, 2000; Russian Federation - deposited on December 11, 2000; Republic of Moldova - deposited on May 26, 2003 year (with reservations).

The Protocol entered into force on 17 September 1999.

Entered into force for the States:

The Republic of Belarus - September 17, 1999; Ukraine - September 17, 1999; the Republic of Kazakhstan - September 17, 1999. The Republic of Tajikistan - February 16, 2000; the Republic of Armenia - June 9, 2000; the Russian Federation - January 9, 2001; the Republic of Moldova - June 24, 2003.

The States parties to the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of January 22, 1993 agreed to make the following amendments and additions to the said Convention:

1. Paragraph 2 of Article 1 after the word "prosecutor's office" should be separated by commas with the words "internal affairs bodies" (hereinafter - in the text).

2. Articles 5 and 6 should be worded as follows:

"Article 5 Procedure of communication

In implementing this Convention, the competent judicial institutions of the Contracting Parties shall communicate with each other through their central, territorial and other bodies, unless this Convention establishes a different procedure for communication. The Contracting Parties shall determine the list of their central, territorial and other bodies authorized to carry out direct relations, which they shall notify the depositary about.

Article 6 Scope of legal assistance

The Contracting Parties shall provide each other with legal assistance by performing procedural and other actions provided for by the legislation of the requested Contracting Party, including: drawing up and forwarding documents, conducting inspections, searches, seizure, transfer of material evidence, examination, interrogation of parties, third parties, suspects, accused, victims, witnesses, experts, search persons, carrying out criminal prosecution, extradition of persons for bringing them to criminal responsibility or carrying out a sentence, recognition and execution of court decisions in civil cases, verdicts in respect of a civil claim, executive inscriptions, as well as by handing over documents".

3. In subparagraph "d" of paragraph 1 of Article 7: after the word "suspects", add the word "accused", replace the words "their name and location" with the words "their name, legal address and/or location".

4. Paragraph 4 of Article 9 of the Convention should also be worded as follows: "4. Summoning the persons referred to in paragraph 1 of this Article residing in the territory of one Contracting Party to a judicial institution of the other Contracting Party must not contain a threat of using coercive means in case of non-appearance."

5. Article 14 of the Convention should be worded as follows:

"Article 14 Forwarding of civil status documents and other documents

1. The Contracting Parties undertake to forward to each other, upon request, without translation and free of charge, certificates of registration of acts of civil status directly through the civil registration authorities of the Contracting Parties, notifying citizens of the transfer of documents. 2. The Contracting Parties undertake to forward to each other, upon request, without translation and free of charge, documents on education, work experience and other documents relating to the personal or property rights and interests of citizens of the requested Contracting Party and other persons residing in its territory.".

6. Add the following sentence to Article 17: "In case of execution of documents in the official languages of the Contracting Parties, certified translations into Russian shall be attached to them".

7. Article 19 should be worded as follows:

"Article 19 Refusal to provide legal assistance

A request for legal assistance may be refused in whole or in part if the provision of such assistance may prejudice the sovereignty or security or contradict the legislation of the requested Contracting Party. In case of refusal of a request for legal assistance, the requesting Contracting Party is immediately notified of the reasons for the refusal.".

8. Add the following article 22.1 to the Convention::

"Article 22 1 Request for the participation of the prosecutor in the civil proceedings

The prosecutor of one of the Contracting Parties has the right to apply to the prosecutor of the other Contracting Party with a request to initiate proceedings in court to protect the rights and legitimate interests of citizens of the requesting Contracting Party, to participate in the consideration of such cases or to bring to a higher court a cassation or private protest, as well as a protest in the order of supervision of judicial decisions in such cases".

9. Article 32 should be worded as follows:

"Article 32 Legal relations of parents and children

1. The rights and obligations of parents and children, including the obligations of parents to maintain children, are determined by the legislation of the Contracting Party in whose territory they have a permanent joint place of residence, and in the absence of a permanent joint place of residence of parents and children, their mutual rights and obligations are determined by the legislation of the Contracting Party of which the child is a citizen. At the request of the plaintiff for alimony obligations, the legislation of the Contracting Party in whose territory the child permanently resides is applied. 2. The alimony obligations of adult children in favor of their parents, as well as the alimony obligations of other family members, are determined by the legislation of the Contracting Party in whose territory they had a joint place of residence. In the absence of a joint place of residence, such obligations are determined by the legislation of the Contracting Party of which the claimant is a national. 3. In cases of legal relations between parents and children, the court of the Contracting Party whose legislation is to be applied in accordance with paragraphs 1 and 2 of this Article is competent. 4. The execution of court decisions in cases related to the upbringing of children shall be carried out in accordance with the procedure established by the legislation of the Contracting Party in whose territory the child resides. 5. The Contracting Parties shall assist each other in the search for the defendant in cases of recovery of alimony, when there is reason to believe that the defendant is in the territory of the other Contracting Party, and the court has issued a ruling on the announcement of his search."

10. The title of section IV of the Convention should read as follows: "Section IV. Legal assistance and legal relations in criminal matters".

11. The title of Part III of section IV of the Convention should read as follows: "Part III. Special provisions on legal assistance and legal relations in criminal matters".

12. Paragraph 1 of article 58 should be worded as follows: "1. The request for extradition must contain the following information: a) the name of the requesting and requested institutions; b) a description of the actual circumstances of the act and the text of the law of the requesting Contracting Party, on the basis of which this act is recognized as a crime, indicating the penalty provided for by this law.; (c) The surname, first name, patronymic of the person to be extradited, his year of birth, nationality, place of residence or stay, if possible - a description of his appearance, photograph, fingerprints and other information about his identity; (d) data on the amount of damage caused by the crime".

13. Article 60 should be worded as follows:

"Article 60 Search and detention for extradition

Upon receipt of an extradition request, the requested Contracting Party shall immediately take measures to search for and take into custody the person whose extradition is required, except in cases where extradition cannot be carried out."

14. To supplement the Convention with articles 61 1 and 61 2 as follows:

"Article 61 1 Search for a person before receiving an extradition request

1. The Contracting Parties shall carry out a search on behalf of a person before receiving a request for his extradition if there are grounds to believe that this person may be in the territory of the requested Contracting Party. 2. The search order is drawn up in accordance with the provisions of article 7 and must contain as complete a description of the wanted person as possible, along with any other information allowing to establish his location, a request for his detention, indicating that a request for the extradition of this person will be submitted. 3. A certified copy of the decision of the competent authority on detention or the sentence that has entered into legal force, information about the unserved part of the sentence, as well as a photograph and fingerprints (if any) are attached to the search order. 4. The requesting Contracting Party shall be informed immediately about the arrest of the wanted person or other results of the search.

Article 61 2 Calculation of the period of detention

The time spent in custody of a person taken into custody in accordance with the provisions of articles 60, 61, 61-1 of this Convention, in the event of his extradition, shall be counted towards the total period of detention provided for by the legislation of the Contracting Party to which the person was extradited."

15. Article 62 should be worded as follows:

"Article 62 Release of a person detained or taken into custody

1. A person taken into custody in accordance with paragraph 1 of Article 61 and Article 61 1 must be released if the requesting Contracting Party is notified of the need to release the person in question, or the request for extradition with all documents attached to it provided for in Article 58 is not received by the requested Contracting Party within forty days from the date of taking into custody. 2. A person detained in accordance with paragraph 2 of article 61 must be released if a request for his detention in accordance with paragraph 1 of article 61 is not received within the time period provided for by law for detention."

16. Add article 67 1 to the Convention as follows:

"Article 67 1 Repeated detention or remand in custody

The release of a person in accordance with paragraph 2 of article 59, paragraphs 1 and 2 of article 62 and article 67 does not prevent his re-arrest and detention in order to extradite the required person in the event of a subsequent request for extradition."

17. Paragraph 1 of Article 70, after the words "issued to another Contracting Party", add the words "or transferred on time".

18. After the words "related to extradition", add the words "or temporary transfer" to Article 71.

19. Add article 76.1 to the Convention as follows:

"Article 76 1 Recognition of sentences

When deciding on the recognition of a person as a particularly dangerous repeat offender, on the establishment of the facts of re-commission of a crime and violation of duties related to probation, postponement of execution of a sentence or parole, the judicial institutions of the Contracting Parties may recognize and take into account the sentences handed down by the courts (tribunals) of the former USSR and its constituent Union republics, as well as by the courts of the Contracting Parties."

20. To supplement the Convention with article 78 1 as follows:

"Article 78 1 Temporary transfer of a person in custody or serving a custodial sentence

1. If it is necessary to interrogate as a witness or victim a person in custody or serving a custodial sentence in the territory of another Contracting Party, as well as to conduct other investigative actions with his participation, this person, regardless of his nationality, may, at the reasoned request of the interested Contracting Party, be, by decision of the Prosecutor General (Prosecutor) of the requested Party. He has been transferred to the Contracting Party for a period of time, subject to his detention and return within the prescribed period. 2. A request for temporary transfer of the person referred to in paragraph 1 of this Article shall be drawn up in accordance with the provisions of Article 7 and must also contain an indication of the time during which the person's presence in the requesting Contracting Party is required. 3. The temporary transfer of the person referred to in paragraph 1 of this Article shall not be carried out: a) if his consent to such transfer has not been obtained; b) if it is necessary for his presence at the preliminary investigation or judicial proceedings in the territory of the requested Contracting Party.; c) if such transfer may entail a violation of the established time limits for the detention of this person or for serving a custodial sentence. 4. The guarantees provided for in paragraph 1 of Article 9 shall apply to the person referred to in paragraph 1 of this article."

21. Article 80 of the Convention should be worded as follows:

"Article 80 Special procedure for communication

The relations on extradition and criminal prosecution are carried out by the General Prosecutors (prosecutors) Of the Contracting Parties. Communications on the execution of procedural and other actions requiring the approval of the prosecutor (court) are carried out by the prosecutor's office in accordance with the procedure established by the General prosecutors (prosecutors) Of the Contracting Parties". This Protocol is subject to ratification and will enter into force in accordance with the procedure provided for in article 83 of the aforementioned Convention. After its entry into force, other States may, with the consent of all the Contracting Parties, accede to this Protocol by submitting documents on such accession to the depositary. The accession is considered to have entered into force after 30 days from the date of receipt by the depositary of the last notification of consent to such accession. Done in Moscow on March 28, 1997, in one original copy in the Russian language. The original copy is kept at the Executive Secretariat of the Commonwealth of Independent States, which will send a certified copy to each signatory State of this Protocol.

For the Republic of Azerbaijan For the Republic of Moldova

For the Republic of Armenia For the Russian Federation

For the Republic of Belarus For the Republic of Tajikistan

For Georgia For Turkmenistan

For the Republic of Kazakhstan For the Republic of Uzbekistan

For the Kyrgyz Republic For Ukraine

Reservations of Ukraine to the Protocol to the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of January 22, 1993

to paragraph 8, "Ukraine undertakes obligations to comply with Articles 22-1 only within the framework of the current national legislation"; to paragraph 19, "Ukraine does not undertake to recognize and take into account sentences handed down by courts of the Contracting Parties when deciding whether to recognize a person as a particularly dangerous repeat offender, to establish the fact of committing a crime repeatedly and violating obligations related to probation, postponement of execution of sentence, or conditional early release"; to p. 21 "Ukraine undertakes an obligation to communicate on the execution of procedural and other actions specified in part two of Article 80 of the Convention, in accordance with the procedure provided for in part one of Article 80 of the Convention." The President of Ukraine

President

Republic of Kazakhstan

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