On the ratification of the Agreement between the Republic of Kazakhstan and Mongolia on the transfer of Convicted Persons

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The Law of the Republic of Kazakhstan dated December 25, 2019 No. 283-VI SAM.

To ratify the Agreement between the Republic of Kazakhstan and Mongolia on the transfer of Convicted Persons, signed in Astana on March 29, 2018.

President of the Republic of Kazakhstan

K. TOKAEV

AGREEMENT between the Republic of Kazakhstan and Mongolia on the transfer of convicted persons

The Republic of Kazakhstan and Mongolia, hereinafter referred to as the Parties,

based on mutual respect for sovereignty and equality,

Desiring to strengthen legal cooperation in criminal legal relations between the two States,

Considering that convicted persons serving their sentences in the State of which they are citizens contributes to their return to society,

We have agreed on the following:

Article 1 Definitions

For the purposes of this Agreement, the following definitions are used:

a) "Transferring Party" - The Party that transfers or transferred the convicted person from its territory;

b) "Receiving Party" - A Party that accepts or has accepted a convicted person into its territory;

c) "Convicted person" - a person sentenced to a fixed term of imprisonment by a court in the Transferring Party.

Article 2 General provisions

Each Party has the right, in accordance with the provisions of this Agreement, to transfer to the other Party a convicted person for the execution of a sentence passed by a court of the Transferring Party.

Article 3 Central authorities

1. In order to implement this Agreement, the Parties shall interact with each other through central authorities designated for this purpose.

2. The central bodies specified in paragraph 1 of this Article are the Prosecutor General's Office for the Republic of Kazakhstan and the Ministry of Justice for Mongolia.

3. In the event of a change by either Party to the said central authorities, the other Party shall be informed of this in writing through diplomatic channels.

Article 4 Conditions for transfer

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

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

b) the person has been convicted of an act that, according to the laws of the Receiving Party, is also a crime.;

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

d) there is a written consent of the convicted person or, if the convicted person cannot freely express his will due to his age, physical or mental condition, the consent of his legal representative;

e) both Parties agree to the transfer.

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

Article 5 Refusal of transfer

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

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

b) the convicted person is involved in legal proceedings in the territory of the Transferring Party.

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

Article 6 Request and response

1. The convicted person or his legal representative may apply to either Party regarding the transfer in accordance with this Agreement. The Party to whom the convicted person has contacted regarding the transfer must notify the other Party in writing.

2. A transfer request may be made by either Party. The requested Party shall promptly notify the requesting Party of its decision whether or not it agrees to the requested transfer.

3. Requests and responses on transfer shall be made in writing and sent through the channels provided for in paragraph 1 of Article 3 of this Agreement.

Article 7 Provision of documents

1. If the transfer is requested and it is not refused by the requested Party, the Transmitting Party provides the Receiving Party with the following documents and information:

a) a certified copy of the judgment that has entered into force, including the relevant provisions of the law on which it is based;

b) information indicating the type and term of the punishment, as well as the date of its calculation;

c) information indicating the regime of serving a sentence by a person, the duration of the parts of the sentence served and to be served, including the terms of pre-trial detention, information on changing the sentence and other information relevant to the execution of the sentence;

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

e) information about the physical and mental state of health of the convicted person.

2. The Receiving Party provides the Transmitting Party with the following documents and information:

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

b) the norms of the law of the Receiving Party, indicating that the act for which the sentence was passed against the convicted person is criminally punishable;

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

Article 8 Notification of a convicted person

1. Each of the Parties in its territory must notify the convicted persons to whom this Treaty applies that they can be transferred in accordance with the provisions of this Treaty.

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

Article 9 The consent of the convicted person and his confirmation

1. The receiving Party has the right to make sure that the convicted person or his legal representative voluntarily agrees to the transfer with full awareness of its legal consequences and confirms this by giving consent to the transfer.

2. At the request of the Receiving Party, the Transferring Party shall provide the Receiving Party, through an authorized person, with the opportunity to verify that the convicted person has expressed his consent to the transfer in accordance with the requirements of paragraph 1 of this article.

Article 10 Transfer of a convicted person

In case of reaching an agreement on the transfer, the Parties shall determine the time, place and procedure for the transfer through consultations through the channels provided for in paragraph 1 of Article 3 of this Agreement.

Article 11 Execution of the sentence

1. After receiving the convicted person, the Receiving Party, in accordance with its national legislation, continues to execute the sentence imposed by the Transferring Party.

2. If the regimes and terms of serving a sentence determined by the Transferring Party are incompatible with the legislation of the Receiving Party, the Receiving Party may amend the sentence with the imposition of a penalty provided for by its national legislation for a similar crime. In case of such a change:

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

b) The receiving Party has no right to replace the punishment in the form of imprisonment with a monetary penalty.;

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

d) the amendment of the sentence by the Receiving Party should not aggravate the sentence of the Transferring Party and exceed the maximum term of punishment provided for by the legislation of the Receiving Party for a similar crime.;

e) the amendment of the sentence should not be limited to the minimum term of punishment applicable to a similar crime under the legislation of the Receiving Party.;

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

3. The further execution of the sentence after the transfer is regulated by the national legislation and rules of the Receiving Party, including the application of mitigation of the sentence and parole.

Article 12 Retention of jurisdiction

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

2. The Receiving Party modifies or cancels the execution of the sentence if it receives from the Transferring Party a sentence that has been modified or cancelled in accordance with this article and passed by the court of the Transferring Party.

Article 13 Pardon and amnesty

Each of the Parties has the right, in accordance with its national legislation, to apply an act of pardon or amnesty to the transferred convicted person, immediately notifying the other Party about it through the channels provided for in paragraph 1 of Article 3 of this Treaty.

Article 14 Informing about the execution of the sentence

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

a) the sentence has been executed;

b) the convicted person has escaped or died before the end of his sentence;

c) The transmitting Party requires a special message.

Article 15 Transit

1. In the event that one of the Parties, cooperating with a third State, transits convicted persons through the territory of the other Party, the former must send the latter a request for permission for such transits.

2. In the case of using air transport and when landing on the territory of the other Party is not planned, the permit specified in paragraph 1 of this Article is not required.

3. The requested Party, if it does not contradict its national legislation, must satisfy the request for transit of the requesting Party.

Article 16 Language

For the purposes of this Agreement, the central authorities of the Parties shall use the Russian language when interacting with each other. Materials prepared in the official language of one Party are provided with a translation into the official language of the other Party or into Russian.

Article 17 Validity of documents

For the purposes of this Treaty, any document prepared by the competent authority of one of the Parties and sent through the channels provided for in paragraph 1 of Article 3 of this Treaty shall be signed and stamped by this competent authority and used in the territory of the other Party without confirmation or legalization.

Article 18 Expenses

1. The receiving Party bears the costs:

a) related to the transportation of the convicted person, except for expenses incurred exclusively on the territory of the Transferring Party;

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

2. The receiving Party has the right to demand full or partial reimbursement of expenses from the convicted person.

Article 19 Settlement of disputes

If the central authorities do not reach an agreement among themselves, any differences related to the interpretation and application of this Treaty shall be resolved through diplomatic channels.

Article 20 Making changes and additions

By mutual agreement of the Parties, amendments and additions may be made to this Agreement, which 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 Article 21 of this Agreement.

Article 21 Entry into force and termination of the Treaty

1. This Treaty is subject to ratification and shall enter into force thirty (30) days after the date of the exchange of instruments of ratification.

2. Each of the Parties has the right to terminate this Agreement at any time by notifying the other Party in writing through diplomatic channels. In this case, this Agreement shall terminate upon the expiration of one hundred and eighty (180) days from the date of receipt of the notification of the intention to terminate it. In the event of termination of this Agreement, the measures for the transfer of convicted persons that were initiated during its validity period remain in force until they are fully implemented.

3. This Agreement also applies to the transfer of convicted persons who were sentenced before its entry into force.

In witness whereof, the undersigned representatives, being duly authorized thereto, have signed this Agreement.

Done in Astana on March 29, 2018, in two copies, each in the Kazakh, Mongolian and Russian languages, all texts being equally authentic. In case of disagreement in the interpretation of the provisions of this Agreement, the Parties shall refer to the text in Russian.

For the Republic of Kazakhstan

For Mongolia

President

Republic of Kazakhstan

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