On the conclusion of an agreement between the Republic of Kazakhstan and Canada on Mutual Legal Assistance in Criminal Matters
Decree of the President of the Republic of Kazakhstan dated June 23, 2003 No. 1139
In order to establish mutually beneficial cooperation in the field of legal relations between the Republic of Kazakhstan and Canada, I hereby decree: 1. To approve the attached draft Agreement between the Republic of Kazakhstan and Canada on Mutual Legal Assistance in Criminal Matters. 2. To conclude an agreement between the Republic of Kazakhstan and Canada on mutual legal assistance in criminal matters. 3. This Decree comes into force from the date of signing.
President of the Republic of Kazakhstan
Agreement between the Republic of Kazakhstan and Canada on Mutual Legal Assistance in Criminal Matters
The Republic of Kazakhstan and Canada, hereinafter referred to as the Parties, wishing to increase the effectiveness of investigation, prosecution and prevention of crimes in both countries on the basis of cooperation and mutual legal assistance in criminal matters, have agreed as follows:
Chapter 1. General provisions
Article 1. Mutual legal assistance
1. The Parties, in accordance with this Agreement, undertake to provide each other with mutual legal assistance in criminal matters. 2. Mutual legal assistance means any assistance provided by the requested Party in matters of criminal investigation or prosecution conducted in the requesting Party, regardless of whether it is requested or should be provided by a court or any other authority. 3. The term "criminal cases" means: for the Republic of Kazakhstan, cases that fall within the jurisdiction of courts and law enforcement agencies in matters of criminal prosecution; for Canada, the investigation and prosecution of acts that constitute crimes under laws issued by Parliament or provincial legislation.
Article 2. Scope of legal assistance
Legal assistance includes: 1) detection and identification of persons and objects; 2) delivery of documents, including documents requesting the personal appearance of persons; 3) provision of information and documents; 4) provision of items, including temporary transfer of physical evidence; 5) search and seizure; 6) collection of evidence and testimony; 7) granting permission for the presence of persons from the Requested Party in the execution of requests for legal assistance; 8) ensuring the appearance of persons in custody to testify or assist in the investigation; 9) providing assistance in ensuring the appearance of witnesses or assistance to persons conducting an investigation; 10) taking measures to detect, arrest and confiscate proceeds from crime; 11) providing other legal assistance, if this does not contradict the objectives of this Treaty.
Article 3. Execution of requests for legal assistance
1. Requests for legal assistance are executed immediately in accordance with the legislation of the requested Party and, if this is not prohibited by them, in the manner specified by the requesting Party. 2. Upon request, the requested Party shall inform the requesting Party of the date and place of execution of the request for legal assistance. 3. To the extent not prohibited by the legislation of the Requested Party, the persons indicated in the request for legal assistance are allowed to be present during its execution.
Article 4. Refusal or postponement of legal assistance
1. Legal assistance may be refused if, in the opinion of the Requested Party, the execution of the request for legal assistance may harm its sovereignty, security, public order, essential State interests, or endanger the safety of any person. 2. The provision of legal assistance may be delayed by the Requested Party if the execution of the request for legal assistance may interfere with an ongoing investigation or prosecution in the Requested Party. 3 1. Legal assistance may be refused if, in the opinion of the Requested Party, the execution of the request for legal assistance may harm its sovereignty, security, public order, essential State interests, or endanger the safety of any person. 2. The provision of legal assistance may be delayed by the Requested Party if the execution of the request for legal assistance may interfere with an ongoing investigation or prosecution in the Requested Party. 3. The requested Party shall immediately inform the Requesting Party of its decision not to comquested Party shall immediately inform the Requesting Party of its decision not to comply in full or in part with the request for legal assistance or to delay its execution, stating the reasons for such a decision. 4. Before refusing to execute a request for legal assistance or postponing its execution, the Requested Party considers all possibilities of providing legal assistance with the conditions that it considers necessary. If the Requesting Party accepts assistance with these conditions, it must comply with them.
Chapter 2. Special provisions
Article 5. Detection and identification of persons and objects
The competent authorities of the Requested Party shall make every effort to establish the location and identification of the persons and objects indicated in the request for legal assistance.
Article 6. Delivery of documents
1. The requested Party undertakes to hand over the documents submitted to it for this purpose. 2. The requesting Party shall transmit a request for the service of a document providing for a response or appeara1. The requested Party undertakes to hand over the documents submitted to it for this purpose. 2. The requesting Party shall transmit a request for the service of a document providing for a response or appearance to the Requesting Party within a reasonable time before the deadline set for such response or appearance. 3. The Requested Party shall send a confirmation of the delivery of the documents in the manner specified by the Requesting Party.
Article 7. Provision of information, documents and items
1. The requested Party undertakes to provide information and copies of documents that are publicly available, including documents from government agencies and bodies. 2. The requested Party may provide information, documents and items owned by a government agency or institution, but which are not publicly available, to the same extent and under the same conditions as if they were provided by its own law enforcement and judicial authorities. 3. The Requested Party may provide certified copies of the documents if the Requesting Party does not requesquested Party may provide certified copies of the documents if the Requesting Party does not request the originals. 4. The original documents or items provided to the Requesting Party shall be returned to the Requested Party upon the latter's request immediately. 5. To the extent not prohibited by the legislation of the Requested Party, documents or items are provided in such form or certified in such a way as may be specified by the Requesting Party in order to ensure their admissibility in accordance with the legislation of the Requesting Party.
Article 8. Search and seizure
1. The requested Party undertakes to comply with the request for a search and seizure. 2. The competent authority that executed the request for a search and seizure shall provide information that the Requesting Party may request regarding (but not exclusively) the identification, condition, integrity and ownership history of documents and objects, and the circumstances under which they were seized.
Article 9. Collection of evidence
1. A person of the Requested Party, from whom testimony and presentation of documents or objects are requested, shall, if necessary, be summoned to the competent authority or court to testify and present these documents or objects, in accordance with the legislation of the Requested Party. 2. To the extent and in a manner not prohibited by the legislation of the Requested Party, civil servants of the Requesting Party and other persons specified in the request for legal assistance are allowed to attend the execution of the reqhe extent and in a manner not prohibited by the legislation of the Requested Party, civil servants of the Requesting Party and other persons specified in the request for legal assistance are allowed to attend the execution of the request and participate in the process conducted in the territory of the Requested Party. 3. The right to participate in the process includes the right to ask questions. Persons present at the execution of the request for legal assistance are allowed to keep a verbatim record of the procedural actions. The use of technical means to carry out such verbatim recording is permitted.
Article 10. Providing evidence or assisting in an investigation
At the request of the Requesting Party, the Requested Party shall invite a person to assist in the investigation or to appear as a witness to the Requesting Party and request his consent. At the same time, in the request, the Requesting Party informs about all expenses to be paid.
Article 11. Ensuring the appearance of persons in custody in order to give evidence or assist in the investigation
1. A person in custody within the jurisdiction of the Requested Party must, at the request of the Requesting Party, be temporarily transferred to the Requesting Party to assist in the investigation or to testify in the process, subject to the voluntary consent of such person to transfer and if there are no grounds preventing the transfer of such person. The requesting Party shall keep suc 1. A person in custody within the jurisdiction of the Requested Party must, at the request of the Requesting Party, be temporarily transferred to the Requesting Party to assist in the investigation or to testify in the process, subject to the voluntonsent of such person to transfer and if there
Article 12. Security guarantees
1. A person who is present in the territory of the Requesting Party in accordance with a request for his presence in that territory may not be taken into custody or subjected to any other restriction of personal freedom under any circumstances other than those provided for in paragraph 1 of Article 11; this person may also not be prosecuted for any any actions or omissions preceding the departure of that person from the jurisdiction of the Requested Party. Such guarantees are also provided when the person pleads guilty in the territory of the Requesting Party to such acts or omissions, and the person is not required to testify in any other case other than the one to which the request relates. 2. Paragraph 1 of this Article is not applicable if a person, having the opportunity to leave the jurisdiction of the Requesting Party, has not left it within thirty days from the moment when it was officially notified that his presence was no longer required, or, having left such jurisdiction, this person voluntarily returned to it.. 3. Any person who refuses to come under the jurisdiction of the Requesting Party may not be subjected to any sanctions or coercive measures in the Requested or Requesting Party.
Article 13. Proceeds from crime
1. The requested Party, upon request, shall make every effort to establish whether any proceeds of crime have been found on its territory and shall notify the Requesting Party of the results of its efforts. 2. When, in accordance with paragraph 1 of this Article, proceeds allegedly obtained by criminal means are found, the Requested Party shall take measures permitted by its legislation with a view to their arrest and subsequent confiscation. 3. The Parties may, on a case-by-case basis, agree on the transfer of proceeds from: 1) criminally obtained; 2) confiscated in connection with a request for legal assistance sent in accordance with the provisions of this Article, taking into account the rights of third parties to these proceeds.
Chapter 3. Procedure
Article 14. The content of requests for legal assistance
1. In all cases, the request for legal assistance must specify: 1) the competent authority conducting the investigation or prosecution to which the request relates; 2) the nature of the investigation or prosecution, including a brief description of the factual circumstances and a copy of the texts of the applicable laws; 3) the purpose for which the request is submitted and a description of the requested assistance; 4) the degree of secrecy to be observed and the relevant justifications; 5) the time frame for the execution of the request. 2. In the following cases, a request for legal assistance must contain: 1) in the case of a request for the collection of evidence, search and seizure, or discovery, arrest or confiscation of proceeds from crime, information confirming that evidence or proceeds from crime can be found on the territory of the Requested Party.; 2) in the case of a request to collect testimony from persons, an indication of whether testimony given under oath or confirmed by a solemn declaration or in any other way prescribed by law is required, as well as a description of the subject of the requested testimony or statements.; 3) in case of temporary transfer of material evidence, the present location of the material evidence in the territory of the Requested Party and an indication of the person or category of persons who will have the material evidence in storage in the Requesting Party, the place of delivery of the material evidence, any checks to be carried out and the date by which the material evidence will be returned; 4) in case of ensuring the appearance of persons in custody, an indication of the person or category of persons who will hold them in custody during the transfer, the place of delivery and the date of their return. 3. If necessary, and where possible, the request for legal assistance should include: 1) the identity, nationality and location of the person or persons being investigated or prosecuted; 2) a detailed description of any specific procedure or requirement that, in the opinion of the Requesting Party, must be met, and the appropriate justification. 4. If the Requested Party considers that there is insufficient information to comply with the request for legal assistance, it may request additional information. 5. The request must be made in writing. In urgent circumstances, a request for legal assistance may be made verbally, but must then be immediately confirmed in writing.
Article 15. Central authorities
For the purposes of this Agreement, the central authorities shall transmit and receive all requests for legal assistance. The central authorities include: 1) on the part of the Republic of Kazakhstan - the Prosecutor General's Office of the Republic of Kazakhstan; 2) on the part of Canada - the Minister of Justice or an official authorized by him.
Article 16. Confidentiality
1. The Requested Party, after consultation with the Requesting Party, may require that information or evidence, as well as their sources, be kept secret or disclosed or used only in accordance with conditions that the Requested Party may specify. 2. The requesting Party may require that the request, its contents, accompanying documents and any action taken pursuant to the request be kept secret. If the request cannot be executed without violating confidentiality, then the Requested Party must notify the Requesting Party before executing the request and the latter determines whether the request should in any case be executed.
Article 17. Restrictions on the use of information and evidentiary material
The requesting Party must not disclose or use information or evidence for purposes other than those specified in the request for legal assistance without the prior consent of the central authority of the Requested Party.
Article 18. ID card
Documents and items transferred under this Agreement do not require any form of identification, except in the cases specified in Article 7 of this Agreement.
Article 19. Language
Requests and attached documents sent from the Republic of Kazakhstan must be accompanied by a translation into English or French. The request and the attached documents sent from Canada must be accompanied by a translation into Kazakh or Russian.
Article 20. Expenses related to the provision of legal assistance
1. The requested Party shall bear the costs associated with the execution of requests for legal assistance, except in the following cases, when they are borne by the Requesting Party: 1) the costs associated with the delivery of a person to or from the territory of the Requesting Party at the request of the Requesting Party, and all costs paid to that person during his stay in the territory Of the requesting Party, as requested in accordance with Articles 10 or 11 of this Treaty; 2) expenses of experts and their fees; 3) expenses related to translation, interpretation and protocol maintenance. 2. If it becomes apparent that the execution of a request for legal assistance requires extraordinary expenses, the Parties shall consult in order to determine the conditions under which the requested legal assistance can be provided.
Chapter 4. Final provisions
Article 21. Other legal assistance
This Agreement does not affect the obligations of the Parties under other agreements, agreements and other arrangements, and also does not prevent the Parties from providing or continuing to provide assistance to each other in accordance with other agreements and agreements.
Article 22. Consultations
The Parties shall immediately, at the request of one of the Parties, consult on the interpretation and application of this Agreement.
Article 23. Making changes and additions
The Parties may make changes and additions to the text of this Agreement by mutual agreement.
Article 24. Entry into force of the Agreement and its termination
1. This Agreement shall enter into force 30 days after the Parties notify each other in writing of the completion of all their internal legal procedures necessary for its entry into force. 2. This Agreement applies to all requests for legal assistance sent after its entry into force, even if the offences they relate to occurred before that time. 3. Either Party may terminate this Agreement. This Agreement shall terminate six months after the date of receipt by one of the Parties of the other Party's official written notification of the termination of the Agreement. 4. Despite the notification of termination of the Agreement received in accordance with paragraph 3 of this Article, the Parties continue to comply with requests for legal assistance made prior to receiving such notification.
Committed in ________ " " ______2003 in two copies, each in Kazakh, Russian, English and French, all texts being equally authentic.
For the Republic of Kazakhstan For Canada
President
Republic of Kazakhstan
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