On the ratification of the Agreement between the Republic of Kazakhstan and Hungary on Mutual Legal Assistance in Criminal Matters

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The Law of the Republic of Kazakhstan dated November 12, 2015 No. 396-V SAM

To ratify The Agreement between the Republic of Kazakhstan and Hungary on Mutual legal assistance in criminal matters, signed in Astana on April 1, 2015.

President of the Republic of Kazakhstan N. NAZARBAYEV

AGREEMENT between the Republic of Kazakhstan and Hungary on Mutual Legal Assistance in Criminal Matters

The Republic of Kazakhstan and Hungary, hereinafter referred to as the "Parties", wishing to promote effective cooperation between the two States in the field of combating crime on the basis of mutual respect for sovereignty and equality, bearing in mind that this goal can be achieved through the conclusion of an international bilateral agreement establishing the procedure for providing legal assistance in criminal matters, have agreed as follows:

Article 1 Scope of application

1. In accordance with the provisions of this Agreement, the Parties undertake, upon request, to provide each other with mutual legal assistance in criminal proceedings in respect of crimes, the punishment for which, at the time of receipt of the request for assistance, falls under the jurisdiction of the competent judicial authorities of the Requesting Party. 2. Such legal assistance includes: (a) locating and identifying persons or objects; (b) handing over documents and materials related to criminal proceedings.; (c) Summoning witnesses, victims, suspects, accused persons and experts to appear voluntarily before the competent judicial authority of the Requesting Party; (d) Receiving and providing documents, materials and evidence; (e) Conducting interrogations and obtaining testimony; (f) Temporarily transferring persons in custody to receive their testimony or participate in other procedural matters. actions; g) conducting forensic examinations, examining documents or objects; h) conducting searches, seizing evidence and confiscating assets; (i) Exchange of information in accordance with national legislation; (j) Without prejudice to paragraph 3 of this article, any other legal assistance that does not contradict the national legislation of the Requested Party. 3. This Treaty does not apply to: (a) the execution of court orders for the arrest of a person and any other measures restricting the personal freedom of a person; (b) the extradition of persons; (c) the execution of sentences, with the exception of confiscation orders; (d) the transfer of convicted persons for the purpose of serving their sentences; and (e) the transfer of criminal proceedings.

Article 2 Double criminality

Legal assistance is provided in proceedings initiated for such crimes, which are also punishable under the national legislation of the Requested Party.

Article 3 Refusal or postponement of legal aid

1. The requested Party shall refuse the requested legal assistance in whole or in part if: a) the execution of the request is contrary to its national legislation or the provisions of this Treaty; b) there are good reasons to believe that the request for legal assistance is directed for the purpose of criminal prosecution, punishment or other infringement of a person on the grounds of his religion, gender, race nationality or political beliefs , or the position of this person may be harmed for any of these reasons; (c) Criminal proceedings have already been initiated in the Requested Party or a final court decision has been rendered against the same person for the same crime specified in the request; (d) The execution of the request may harm the sovereignty, security, public order or other essential interests of the Requested Party, or its consequences will be contrary to the fundamental principles of its national legislation; e) Investigations or criminal proceedings relate to: i. an offence which the Requested Party considers to be a political offence or an offence related to a political offence; or ii. an exclusively military crime, which does not constitute a crime under ordinary criminal law. 2. The requested Party may delay the execution of the request if it serves as an obstacle to the criminal proceedings being conducted in its territory. 3. Before refusing to execute a request or postponing its execution, the Requested Party should consider whether it is possible to provide legal assistance under certain conditions. To this end, the central authorities of the Parties, designated in accordance with Article 4 of this Treaty, shall consult with each other, and if the Requesting Party agrees, legal assistance should be provided on agreed terms. 4. When the Requested Party refuses legal assistance or delays its execution, it shall notify the Requesting Party in writing of the reasons for such refusal or postponement.

Article 4 Central authorities

1. In order to implement this Agreement, requests for legal assistance must be submitted through the central authorities designated by the Parties. The central authorities are: - for the Republic of Kazakhstan: the Prosecutor General's Office; - for Hungary: the Minister responsible for Justice and the Prosecutor General. 2. The Parties shall notify each other of any changes to the central authorities through diplomatic channels. 3. For the purposes of this Agreement, the central authorities interact with each other directly.

Article 5 Form and content of requests

1. The request shall be drawn up in writing, signed and stamped by the competent judicial authority of the Requesting Party. 2. The request for legal assistance must include the following: (a) the name of the competent judicial authority of the Requesting Party; (b) a description of the facts of the crime, indicating the time and place of its commission and the harm caused, if any.; (c) An indication of the applicable provisions of national legislation, including provisions on the statute of limitations for criminal liability and an extract from criminal legislation providing for liability for the crime for which legal assistance is requested; (d) A description of the requested measures; (e) In cases of reasonable urgency, an indication of the time period during which the request is expected to be executed; (f) An indication of the persons responsible whose presence is required during the execution of the request in accordance with paragraph 3 of Article 6 of this Agreement; (g) Information on payments and compensation for expenses to which the person summoned to appear before the Requesting Party is entitled; (h) Information necessary to obtain testimony by videoconference, as provided for in article 12 of this Treaty. 3. The request shall also include, as appropriate, the following: (a) information about the person being investigated; (b) information about the person who is to be identified or whose location is to be discovered.; (c) Information on the identity and place of residence of the person to be served, as well as the manner in which it is to be performed; (d) Information on the identity and place of residence of the person who is to testify; (e) Location and description of the place or object to be examined; (f) Location and description the place to be searched and the items to be seized or confiscated; g) any special procedure required to comply with the request and the relevant reasons for doing so; H) the degree of confidentiality to be respected and the reasons for it; i) any other information that may facilitate the execution of the request. 4. If the Requested Party considers that the information contained in the request is insufficient for its execution, it may request additional information. 5. The request and supporting documents submitted in accordance with this Article shall be drawn up in writing in the official language of the Requesting Party and accompanied by a translation into the official language of the Requested Party or into English. 6. Requests for legal assistance and related communications may be sent and received by an expeditious means of transmitting information, including fax or e-mail, followed by sending the original request when requested by the Requested Party.

Article 6 Execution of the request

1. The Requested Party shall carry out the execution of requests sent to it by the Requesting Party in accordance with the procedures and in accordance with the procedure provided for by its national legislation. 2. When providing legal assistance, the Requested Party may, upon request, apply a special procedure required by the Requesting Party to the extent that such procedure is compatible with its national legislation. 3. Officials of the Requesting Party may be present during the execution of requests, if the Requested Party agrees to this. For this purpose, the Requested Party shall immediately inform the Requesting Party of the date and place of execution of the request. 4. The requested Party shall immediately inform the Requesting Party of the results of the execution of the request. 5. If the person in respect of whom the request is to be executed, prior to its execution, invokes immunity, privileges or incapacity in accordance with the national legislation of the Requested Party, its competent authority shall make an appropriate decision and inform the Requesting Party accordingly. 6. The documents sent as execution of the request shall be drawn up in the official language of the Requested Party, as well as stamped by the competent judicial authority of the Requested Party that executed the request.

Article 7 Locating and identifying persons or objects

In accordance with its national legislation, the Requested Party shall make every effort to determine the location of the person or object indicated in the request and presumably located on its territory, and shall inform the Requesting Party of the results.

Article 8 Service of subpoenas and documents

1. The Requested Party, in accordance with its national legislation, shall make every effort to serve the summonses and other documents sent by the Requesting Party. 2. After the delivery of the summonses and documents, the requested Party shall send to the Requesting Party a confirmation of delivery with the signature of the official or seal of the authority that carried out the delivery, indicating the date, place and method of delivery, as well as information about the person to whom the documents were delivered. If no delivery has been made, the Requested Party shall notify the Requesting Party and inform it of the reasons for non-delivery. 3. A request for the service of summonses to appear before the competent judicial authority of the Requesting Party shall be sent before the expiration of the period established by paragraph 2 of Article 10 of this Treaty. 4. A summons to the competent judicial authority of the Requesting Party and the documents to be served must not be accompanied by any threat of coercive measures in case of non-appearance.

Article 9 Obtaining testimony from the Requested Party

1. The Requested Party, in accordance with its national legislation, shall make every effort to obtain testimony from witnesses, victims, suspects or accused persons, experts or other persons present in the Requested Party, as well as receive materials, documents and any other testimony specified in the request and transmit them to the Requesting Party. 2. The requested Party shall immediately notify the Requesting Party of the date, place and time of receiving testimony from the persons referred to in paragraph 1 of this Article, including for the purposes provided for in paragraph 3 of Article 6 of this Treaty.  3. A person called to give evidence has the right to refuse to provide evidence if the national legislation of either Party allows this. For this purpose, the Requesting Party indicates such rights in the request. 4. The requested Party shall permit the presence of the lawyer of the person called to testify whenever this is provided for by the national legislation of the Requesting Party.

Article 10 Getting readings in the Coloring Side

1. Upon request, the requested Party shall summon the persons referred to in subparagraph (c). paragraph 2 of Article 1 of this Treaty. The requested Party shall immediately notify the Requesting Party of the response of the summoned person. 2. The requesting Party shall transmit to the Requested Party a request for the delivery of a summons to appear before the competent judicial authority of the Requesting Party no later than sixty days before the day set for appearance, except in urgent cases when the Requested Party has agreed on a shorter period. 3. The requesting Party shall indicate in the request the amount of any payments and compensation for expenses to which the person summoned to appear on the territory of the Requesting Party is entitled.

Article 11 Guarantees and special rule

1. During the period during which a person is staying in the Requesting Party in accordance with article 10 of this Treaty, he/she: (a) may not, regardless of his/her nationality, be subjected to criminal prosecution, detention or any other restriction of personal freedom in the territory of that Party for acts committed prior to entry into the territory of the Requesting Party. The parties; (b) Must not be forced to give evidence or to participate in any event related to a proceeding other than that referred to in the request for legal assistance, unless that person consents to it. 2. Paragraph 1 of this Article shall cease to have effect if the person indicated therein: (a) does not leave the territory of the Requesting Party within forty-five days from the date on which he was officially notified that his presence was no longer necessary. This period does not include the period during which the above-mentioned person has not left the territory of the Requesting Party for reasons beyond his control; b) after leaving the territory of the Requesting Party, he voluntarily returns back. 3. The victim, witness or expert, who is interrogated in accordance with the procedure provided for in Articles 9 and 10 of this Treaty, is responsible for the content of the testimony, expert opinion given during the appearance before the competent judicial authority, in accordance with the national legislation of the Parties, while maintaining the jurisdiction of each Party in relation to the crime committed by them.

Article 12 Hearing by videoconference

1. If a person located in the territory of another Party is to be questioned as a witness, victim, suspect, accused or expert by the competent judicial authorities of the Requesting Party, the latter may request that the interrogation take place via videoconference. In addition to the grounds for refusal of legal assistance provided for in article 3 of this Treaty, a hearing by videoconference may be refused if: a) the suspect or the accused person does not give his consent; or (b) the implementation of such a measure in a particular case would be contrary to the national legislation of the Requested Party. 2. Practical arrangements for the hearing should be agreed upon by the Parties, and the Requested Party should: (a) summon the person referred to in paragraph 1 of this article to attend the hearing in accordance with its national legislation and inform the summoned person of his rights under the national legislation of the Requesting Party; (b) ensure that the person being heard is identified. 3. When hearing a person via videoconference, the following rules apply: a) an official of the competent judicial authority of the Requested Party must be present and also be responsible for ensuring both identification of the person being heard and respect for the basic principles of the national legislation of the Requested Party. If the Requested Party considers that the basic principles of its national legislation are violated during the hearing, it should immediately take all measures to ensure that the hearing continues in accordance with these principles; (b) if necessary, protective measures for the person being heard should be agreed between the Parties; (c) the hearing is conducted directly or under the supervision of the competent judicial authority of the Requesting Party in accordance with in accordance with its national legislation; (d) At the request of the Requesting Party or the person being heard, the Requested Party must provide the person being heard with an interpreter; (e) The person being heard may assert the right not to testify, which is granted to him under the national legislation of either Party; the person concerned must be informed of this right before the hearing; (f) The Requested Party permits the presence of a lawyer for the person being heard. 4. Upon completion of the hearing, the Requested Party shall draw up a protocol indicating the date and place of the hearing, the identity of the person being heard, the identity and functions of all other persons in the Requested Party who participated in the hearing, any sworn statements submitted and the technical conditions under which the hearing took place. The original of the specified protocol must be sent to the Requesting Party. 5. If a witness, victim or expert is heard via videoconference in accordance with this article and refuses to testify when they are required to testify, or gives false testimony, the Requested Party must apply its national legislation in the same way as if the hearing were an internal procedure. 6. Expenses incurred by the Requested Party in connection with the videoconference shall be reimbursed by the Requesting Party, unless otherwise agreed by the Parties. 7. The requested Party has the right to authorize the use of videoconference technologies also for purposes other than those specified in paragraph 1 of this article, including such use for the purpose of identifying persons and objects or conducting confrontations.

Article 13 Temporary transfer of persons in custody to appear as witnesses before the competent judicial authorities Of the Requesting Party

1. A person in custody whose personal appearance as a witness is requested by the Requesting Party shall be temporarily transferred to its territory, provided that he must be returned within the period specified by the Requested Party. 2. The transfer may be refused if: (a) the person in custody does not consent to the transfer; (b) his presence is necessary in criminal proceedings conducted by the Requested Party; (c) the transfer may prolong his detention.; or (d) there are other compelling reasons not to transfer it to the territory of the Requesting Party. 3. The transferred person must remain in custody in the territory of the Requesting Party and, where applicable, in the territory of the third State through which transit is requested, except in cases where the Requested Party requests his release.

Article 14 Provision of official or publicly available documents

1. Upon request, the Requested Party shall provide the Requesting Party with copies of materials or documents available to the public from government agencies or public organizations. 2. The requested Party has the right to provide copies of materials or documents that are not publicly available from government agencies or public organizations to the extent and under the conditions to which these copies are available to judicial or law enforcement authorities of the Party being interviewed. Such copies must be certified by the competent authority of the Requested Party in accordance with its optional legislation.

Article 15 Provision of documents, materials or items

1. When a request concerns the transfer of documents or materials not specified in Article 14 of this Treaty, the Requested Party may transfer copies thereof. When the Requesting Party requests the transfer of originals, the Requested Party executes the request as far as possible. 2. The original documents and materials, as well as items transferred to the Requesting Party, are returned to the Requested Party as soon as possible, except in cases where the Requested Party does not require their return.

Article 16 Searches, seizures and preventive measures

1. Upon request, the requested Party shall take measures to establish in its territory the proceeds of crime or items related to the crime, and shall inform the Requesting Party of the results. 2. In the event of the discovery of proceeds of crime or items related to a crime, the Requested Party, upon request, shall take any measures provided for by its national legislation with a view to seizing or securing proceeds of crime or items related to a crime. 3. Upon request, the Requested Party shall transfer in whole or in part any proceeds of crime or items related to the crime, as well as any sums of money received from their sale, in accordance with the terms agreed between the Parties. 4. The requested Party may defer the transfer of any requested proceeds of crime or items related to the crime if they are necessary for other internal proceedings. 5. In applying this article, any rights of the Requested Party or third parties with respect to the aforementioned proceeds of crime or items related to the crime shall be respected.

Article 17 Establishment of the bank and financial information

1. Upon request, the Requested Party, in accordance with its national legislation, shall determine whether the person suspected or accused of committing a crime is a holder of a bank account or accounts with any bank or other financial institutions located on its territory, and provide the Requesting Party with relevant information, including information about persons authorized to use such accounts, the location of the latter and any transactions related to them. 2. In addition to the provisions of Article 5 of this Treaty, the request for information referred to in paragraph 1 of this Article must include: (a) identification data of a natural or legal person related to the placement of such accounts or transactions; (b) sufficient information to ensure that the competent judicial authority of the Requested Party: i. reasonably suspect that a natural or legal person of interest is involved in a crime, and banks or non-bank financial institutions in the territory of the Requested Party may have the requested information; ii. conclude that the requested information relates to a criminal investigation or proceeding; c) to the extent possible, any other information that may facilitate the execution of the request. 3. The legal assistance referred to in this article may not be refused on the basis of bank secrecy. 4. The requesting Party must ensure that the information obtained under this article will be used exclusively for the purposes of the criminal proceedings specified in the request.

Article 18 Exchange of information on criminal proceedings and criminal convictions

1. Upon request and for the purposes of criminal proceedings, the Requested Party shall transmit to the Requesting Party information on criminal proceedings, criminal records and sentences imposed against nationals of the Requesting Party, in accordance with article 19 of this Treaty. 2. Criminal record information required by the competent judicial authority of the Requesting Party for the purposes of criminal proceedings must be transmitted as if it could be issued to the competent judicial authority of the Requested Party in similar circumstances.

Article 19 Protection of personal data

1. Without prejudice to paragraph 2 of this article, personal data may be collected and transferred only if it is necessary and proportionate to the purposes specified in the request for legal assistance. 2. Personal data transferred to the other Party as a result of the execution of a request sent under this Agreement may be used by the Party to whom such data was transferred solely for the following purposes: a) for the purposes of criminal proceedings for which legal assistance was requested under this Agreement; (b) For other judicial or administrative proceedings directly related to the proceedings referred to in subparagraph (a) of this paragraph; (c) To prevent a sudden and serious threat to public safety. 3. Such data may also be used for any other purpose if prior appropriate consent is given by the Party who provided the personal data or by the person who is the subject of the personal data. Consent must be given in accordance with the national legislation of the Party that transferred the personal data. 4. Either Party may refuse to transfer personal data if such data is protected by its national legislation and when the same degree of data protection cannot be provided by the other Party. 5. Any Party that transmits personal data may require the Party to whom such data was transmitted to provide information about the use of this data. 6. Personal data transferred under this Agreement must be processed and destroyed in accordance with the national legislation of the Party that received such data. Despite these restrictions, the transferred data should be destroyed as soon as it is no longer required for the purposes for which it was transferred. 7. This Article should not prejudice the ability of the Party transferring personal data to establish additional conditions in a specific case where a request for legal assistance cannot be fulfilled in the absence of such conditions. In the event that additional conditions have been established in accordance with this paragraph, the Party to whom the personal data has been transferred will process the received data in accordance with such conditions. 8. If, after the transfer of personal data, the Party that transferred them learns of circumstances that may be the reason for establishing an additional condition in a particular case, the Parties may consult with each other to determine the extent to which personal data can be protected.

Article 20 Information on national legislation

Upon request, the Parties shall exchange information on current or previously existing national legislation and on their judicial practice.

Article 21 Exemption from legalization

The documents and materials submitted in accordance with this Agreement do not require any legalization, certification or authentication.

Article 22 Confidentiality

1. The Requested Party shall ensure the confidentiality of the request and its contents, if such confidentiality is requested by the Requesting Party. If the request cannot be executed without violating the requested confidentiality, the Requested Party must inform the Requesting Party, which then determines whether the request should nevertheless be executed. 2. Upon the relevant request of the Requested Party, the Requesting Party shall maintain confidentiality with respect to evidence and information obtained during the execution of the request for legal assistance, except in cases where evidence and information are used in investigations and criminal proceedings.

Article 23 Expenses

1. The Parties shall bear the costs associated with the implementation of this Agreement in accordance with their national legislation. 2. Without prejudice to paragraph 3 of this Article, the Requested Party shall bear the costs associated with the execution of the request. 3. The Requesting Party shall bear the following costs: (a) the costs of travel and stay in the Requested Party of the persons referred to in paragraph 3 of Article 6 of this Treaty; (b) the costs of travel and stay in the Requesting Party of the persons referred to in Article 10 of this Treaty; (c) The costs of holding a videoconference, while maintaining the provision provided for in paragraph 6 of article 12 of this Treaty; (d) the costs arising from the execution of a request under article 13 of this Treaty; (e) The costs and fees of experts; (f) the costs and fees for translation, interpretation and copying; (g) the costs of storage and transfer of seized items. 4. In the event that the execution of a request entails unforeseen expenses, the Parties shall consult in order to agree on the conditions under which the request should be executed and the criteria for dividing the corresponding costs.

Article 24 Compatibility with other international treaties

This Agreement does not affect the rights and obligations of the Parties arising from any international treaties to which they are parties, and for Hungary - arising as a member State of the European Union.

Article 25 Dispute settlement

Any dispute arising in the course of the application or interpretation of this Treaty shall be resolved through negotiations or diplomatic consultations between the Parties.

Article 26 Entry into force, amendments and additions and termination of the Agreement

1. This Agreement shall be concluded for an indefinite period of time and shall enter into force on the thirtieth day after the date of receipt of the last written notification through diplomatic channels that the Parties have completed the internal procedures necessary for its entry into force. 2. Amendments and additions may be made to this Agreement by agreement of the Parties. Amendments and additions are formalized by separate protocols, which are its integral parts and enter into force in accordance with the procedure provided for in paragraph 1 of this Article. 3. Either Party has the right to terminate this Agreement at any time by sending a written notification to the other Party through diplomatic channels. This Agreement shall terminate upon the expiration of one hundred and eighty days from the date of receipt of such notification. 4. In the event of termination of this Agreement, requests for legal assistance received during its validity period must be executed in accordance with the provisions of this Agreement. 5. This Agreement applies to any request sent after its entry into force, including if the relevant crimes were committed before its entry into force.

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

Done in Astana on April 1, 2015, in two originals, each in the Kazakh, Hungarian and English languages, all texts are authentic and have the same validity. In case of disagreement in the interpretation of the provisions of this Agreement, the English text will prevail.

For the Republic of Kazakhstan

For Hungary

I confirm the authenticity of the text of the Agreement between the Republic of Kazakhstan and Hungary on Mutual Legal Assistance in Criminal Matters, signed in Astana on April 1, 2015 in Kazakh, Hungarian and English with the text in Russian.

Head of the Department of International Cooperation of the Prosecutor General's Office of the Republic of Kazakhstan S. Dospolov

RCPI's note! The following is the text of the Agreement in Hungarian and English.

President

Republic of Kazakhstan

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