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

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The Law of the Republic of Kazakhstan dated September 22, 2015 No. 352-V SAM

To ratify The Agreement between the Republic of Kazakhstan and Romania on legal assistance in criminal matters, signed in Bucharest on November 14, 2014.

President of the Republic of Kazakhstan N. NAZARBAYEV

AGREEMENT between the Republic of Kazakhstan and Romania on Legal assistance in Criminal Matters

The Republic of Kazakhstan and Romania, hereinafter referred to as the "Parties", striving to develop and facilitate cooperation in criminal matters between the competent authorities of both Sides, taking into account the mutual interest of the Parties in providing each other with legal assistance in criminal matters, wishing to create a bilateral framework for cooperation and promote the application of the provisions of multilateral international treaties to which the Republic of Kazakhstan and Romania are parties in the field of legal assistance in criminal matters, we have agreed on the following:

Article 1 Purpose of assistance

1. In accordance with the provisions of this Agreement, the Parties shall provide each other with the maximum possible legal assistance in any proceedings related to crimes, the suppression of which, at the time of submitting the request for assistance, falls within the jurisdiction of the competent authorities of the Requesting Party. 2. Legal assistance includes the following types of activities: a) handing over documents; b) locating or identifying persons and objects; c) receiving testimony and statements, including through videoconference; (d) Temporary transfer of persons in custody; (e) Search, seizure and confiscation; (f) Inspection of objects and places; (g) Exchange of information and evidence; (h) Controlled deliveries, secret investigations and joint investigation teams; (i) Any other forms of assistance provided for by the national legislation of the Requested Party.

Article 2 Central authorities

1. For the purposes of this Agreement, the central authorities designated by the Parties shall interact directly with each other. 2. The central authorities are:  for the Republic of Kazakhstan – the Prosecutor General's Office of the Republic of Kazakhstan; for Romania – the Ministry of Justice of Romania. 3. In the event of a change in the names of their central bodies or the transfer of their functions to other State bodies, the Parties shall notify each other through diplomatic channels.

Article 3 Form and content of requests

1. The request shall be drawn up in writing, signed and stamped by the competent authority of the Requesting Party. 2. The request includes the following: (a) The name of the competent authority that made the request; (b) The purpose and description of the assistance requested; (c) A description of the act and its legal qualification; (d) An indication of the applicable provisions of national legislation, including the statute of limitations on criminal liability; (e) the reasons for requesting evidence, information or other measures; (f) Where appropriate, information on payments and compensations to which the person called to appear is entitled; and (g) where appropriate, an indication of the persons whose presence is required during the execution of the request. 3. Whenever possible, the request also includes: (a) Information on the identity and location of the person to whom the documents are being served, their procedural status and the manner in which the service is to be performed; (b) Information on the identity and location of the person who is to testify or assist in the proceedings; (c) Information on the identity of the person or object whose location must be determined; (d) An accurate description of the place or person to be searched and the funds to be confiscated; (e) A description of the manner in which any evidence or statements must be received and recorded; (f) a list of questions to be asked of the person being heard; g) a description of any specific procedure that must be followed when executing the request; h) confidentiality requirements; and i) any other information that may be provided to the Requested Party to facilitate the execution of the request. 4. Appropriate electronic means of communication, in particular fax, may also be used to transmit a request for assistance in accordance with this Agreement, provided that the authenticity and confidentiality of the requests, as well as the reliability of the transmitted data, are guaranteed.

Article 4 Language

1. The request and the documents attached to it shall be drawn up in the language of the Requesting Party and accompanied by an English translation. 2. The documents for the execution of the request are drawn up in the language of the Requested Party and are accompanied by an English translation. 3. In the case of a large volume of documents for the execution of the request, the central authorities of the Parties hold consultations to determine the list of documents to be translated into English.

Article 5 Refusal to provide assistance

1. The requested Party may refuse to provide the requested assistance in whole or in part if: (a) The request concerns an offence that is considered by the Requested Party to be a political offence or an offence related to a political offence or related to a political offence; (b) The request concerns an offence that is considered by the Requested Party to be a military offence, which is not an offence under customary criminal law; (c) The execution of the request poses a threat to the sovereignty, security, public order or other essential interests of the Requested Party; (d) the request concerns coercive measures that are contrary to the national legislation of the Requested Party; (e) There are good reasons to believe that the request was sent for the purpose of criminal prosecution against a person on the grounds of his race, gender, religion, the nationality, ethnic origin, or political beliefs or position of this person may be harmed for any of these reasons. 2. Before refusing to provide assistance, the central authority of the Requested Party consults with the central authority of the Requesting Party. 3. Any refusal to provide assistance must be motivated and the grounds for refusal must be communicated to the Requesting Party.

Article 6 Execution of requests

1. Requests shall be executed in accordance with the national legislation of the Requested Party. 2. If the request cannot be executed in whole or in part in accordance with the procedural requirements established by the Requesting Party, even if such requirements are not provided for in the Requested Party, the Requested Party shall comply with the request to the extent that it does not contradict its fundamental legal principles. 3. The requested Party may delay the execution of the request if such execution serves as an obstacle to criminal proceedings conducted by the competent authorities of the Requested Party. 4. Before postponing the provision of assistance, the Requested Party, after possible consultations with the Requesting Party, shall consider whether it is able to comply with it in whole or in part, or under conditions that it deems necessary. 5. Any decision to postpone the execution of a request must be motivated. The Requested Party shall inform the Requesting Party of the reasons that are likely to lead to a significant delay in the execution of the request. 6. The Requested Party shall execute the request for assistance as soon as possible, fully taking into account the procedural and other deadlines specified by the Requesting Party. In this case, the Requesting Party justifies the reasons for specifying the deadline for executing the request.

Article 7 Confidentiality and restrictions on use

1. The Requesting Party may request that the Requested Party ensure the confidentiality of the request and its contents, except in cases where this is incompatible with the execution of the request. If the Requested Party is unable to comply with the confidentiality requirement, it will immediately inform the Requesting Party, which will determine whether the request should still be fulfilled. 2. The Requested Party may request the Requesting Party not to use any information or evidence obtained under this Agreement in any proceedings other than those mentioned in the request, without the prior written consent of the Requested Party. In such cases, the Requesting Party complies with this requirement.

Article 8 Service of documents

1. The Requested Party shall serve the documents submitted to it for this purpose by the Requesting Party. 2. After delivery, the requested Party shall send to the Requesting Party a confirmation of delivery with the signature of the official and the seal of the authority that carried out the delivery, indicating the date, time, place and method of delivery, as well as information about the person to whom the documents were delivered. If delivery has not been made, the Requested Party shall immediately notify the Requesting Party and inform it of the reasons for non-delivery. 3. Summonses requiring persons to appear before the competent authorities of the Requesting Party shall be transmitted to the Requested Party at least sixty (60) calendar days before the date of the scheduled appearance. In urgent cases, the Requested Party may agree on a shorter period. 4. A person who fails to appear at the competent authority of the Requesting Party is not subject to any punishment or compulsory measure, even if the summons contains a warning about possible liability in case of non-appearance, except in cases when he voluntarily entered the territory of the Requesting Party and was repeatedly summoned there.

Article 9 Immunity

1. A person, regardless of his nationality, who appears on a summons to the competent authority of the Requesting Party may not be subjected to criminal prosecution, detention or any other restriction of his personal freedom in the territory of that Party in respect of acts or criminal convictions that preceded his entry into the territory of the Requesting Party and are not indicated in the summons. 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 fifteen (15) days from the moment when he was officially notified that his presence is 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.

Article 10 Location or identification of persons and objects

1. Either Party may request the other Party to establish the location, identify persons and provide the place of residence or place of registration of wanted persons who are to appear before the competent authorities in criminal proceedings and are believed to be in that other Party. 2. Either Party may request the other Party to establish the location, identify the items and provide relevant data, or apply any other measure that allows the location and identification to be determined in accordance with its national legislation. 3. The requested information must be communicated to the Requesting Party on the basis of a request sent in accordance with Article 3 of this Treaty. In emergency cases, a request can also be sent through the International Criminal Police Organization (Interpol).

Article 11 Temporary transfer of persons in custody to the Requesting Party

1. A person in custody of the Requested Party, whose personal appearance as a witness or accused is requested by the Requesting Party, is temporarily transferred to the territory of that Party, provided that he is transferred back within the period specified by the Requested Party, which should not exceed six (6) months. The requesting Party may request an extension of the specified period. An extension can only be granted once. 2. The transfer may be refused if: (a) The person in custody does not consent to this; (b) The presence of the person in custody is required in criminal proceedings conducted in the Requested Party; (c) The period of the person's detention may expire during the period of temporary transfer requested; (d) There are other grounds against his transfer to the Requesting Party. 3. The transferred person remains in custody in the Requesting Party, including in the territory of the State through which the transit is carried out at the request of the Requesting Party, except in cases when the Requested Party requests his release. Admission to a penitentiary institution of the Requesting Party is carried out on the basis of this article. 4. The transferred person shall be transferred and received under escort at the border checkpoint of the Requested Party.

Article 12 Temporary transfer of persons in custody in the Requesting Party to the Requested Party

1. A requesting Party that has requested assistance that may require the personal appearance of a person in custody on its territory may temporarily transfer that person to the territory of the Requested Party, where the request will be executed. 2. The means for carrying out the temporary transfer of a person and the period for which this person must be transferred to the Requested Party must be agreed between the central authorities on the basis of information and data provided by the competent authorities of the Parties.  3. The transferred person remains in custody in the Requested Party and in the territory of the State through which transit is requested, if necessary, unless the Requesting Party requests his release. Admission to a penitentiary institution of the Requested Party is carried out on the basis of this article. 4. The period of detention in the Requested Party shall be included in the period of detention to be served by that person in the Requesting Party.

Article 13 Search and seizure

1. The requested Party shall search, seize and transfer an object, provided that the request for assistance contains information that justifies such actions in accordance with the national legislation of the Requested Party, and the crime for which the request is made is punishable under the national legislation of both Parties. 2. In case of seizure of an item, the Requested Party certifies its authenticity, the duration of storage and any changes in the condition of this item. No additional identification is required to establish these aspects in the proceedings in the Requesting Party. 3. The Requested Party may require the Requesting Party to give its consent to the conditions that the Requested Party considers necessary to protect the rights and interests of third parties with respect to the transferred item.

Article 14 Assistance in confiscation procedures

1. The Parties shall provide each other with assistance in the framework of procedures that include the identification, detection, seizure and confiscation of proceeds of crime or objects of crime in accordance with the national legislation of the Requested Party. 2. When one of the Parties learns that proceeds of crime or objects of crime are located in the territory of the other Party, which may be seized or confiscated in accordance with the national legislation of that Party, it may inform the other Party. If the informed Party has the necessary jurisdiction, such information may be provided to its competent authorities to determine whether action can be taken. The competent authorities of the Requested Party shall make a decision in accordance with their applicable national legislation and inform the other Party of any measures taken. 3. Upon request, the Requested Party shall transfer in whole or in part any proceeds from crime or objects of crime, as well as any financial resources received from their sale, in accordance with the terms agreed between the Parties. In this regard, the Requested Party may consider the possibility of reaching an agreement with the other Party on an ongoing basis or on a case-by-case basis on the division of such confiscated proceeds of crime, objects of crime or financial resources obtained from their sale. Such agreements are reached between the central authorities of the Parties.

Article 15 Establishment of the bank and financial information

1. Upon request, the Requested Party shall immediately determine whether the person suspected or accused of committing a crime is the holder of a bank account or accounts with any bank located in 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. The measures referred to in paragraph 1 of this article may also apply to financial institutions other than banks. 3. The assistance referred to in this article may not be refused on the basis of bank secrecy.

Article 16 Interim measures

Upon request, the Requested Party, in accordance with its national legislation, decides to take temporary measures to preserve evidence to ensure the current situation or to protect legitimate interests that are in danger.

Article 17 Return of items

Any property, as well as the original materials or documents transferred to the Requesting Party, are returned to the Requested Party as soon as possible, except in cases when the latter waives its right to return them.

Article 18 Hearing by videoconference

1. If it is not possible for a person who is located in the territory of one of the Parties to appear and must be heard as a witness, expert, victim, suspect or accused by the competent authorities of the other Party, the latter may request a hearing via videoconference, as provided for in paragraphs 2-8 of this Article. 2. The requested Party agrees to be heard by videoconference, provided that it has the technical means to conduct a videoconference. If the Requested Party does not have access to the technical means for conducting a videoconference, such means may be provided to it by the Requesting Party by mutual agreement. 3. In addition to the information specified in article 3 of this Treaty, requests for a videoconference hearing must contain the name of the competent authority and the persons who will conduct the hearing. 4. The competent authority of the Requested Party shall summon the relevant person to appear in accordance with its national legislation. 5. When hearing by videoconference, the following rules apply: a) the competent authority of the Requested Party is present during the hearing, uses the services of an interpreter, if necessary, and ensures the identification of the person being heard and compliance with the fundamental principles of the national legislation of the Requested Party. If the competent authority of the Requested Party considers that the fundamental principles of the national legislation of the Requested Party are violated during the hearing, it should immediately take the necessary measures to ensure that the hearing continues in accordance with these principles; b) measures to protect the person being heard should, if necessary, be agreed between the competent authorities of the Parties; c) the hearing is conducted directly or under the guidance of the competent authority of the Requesting Party in accordance with its national legislation; (d) At the request of the Requesting Party or the person being heard, the Requested Party shall, if necessary, provide the person being heard with the assistance of an interpreter; (e) The person being heard may, in accordance with national law, exercise the right of either Party not to testify. 6. Without prejudice to any measures agreed upon for the protection of persons, the competent authority of the Requested Party shall draw up a protocol on the conduct of the hearing, indicating the date and place of the hearing, the identity of the person heard, the identity and status of all other persons in the Requested Party who participated in the hearing, any oaths and the technical conditions under which the hearing took place. The Protocol is sent through the central authorities of the Parties. 7. If a witness, expert, or victim knowingly gives false testimony or refuses to give evidence, they are liable in the same way as the internal procedures applied. 8. If a hearing of a suspect or accused person is requested via videoconference, the decision to hold a videoconference and the procedure for holding it are agreed upon by both Parties and must comply with their national legislation. The consent of the suspect or the accused person is mandatory for the hearing. A declaration of consent is given before the competent authority of the Requested Party and is included in the protocol, which is sent to the Requesting Party.

Article 19 Controlled deliveries

1. Upon request, each Party shall take the necessary measures to conduct controlled deliveries on its territory. 2. The decision to carry out a controlled delivery is made on a case-by-case basis by the competent authorities of the Requested Party, taking into account the national legislation of that Party. 3. Controlled deliveries must be carried out in accordance with the procedures of the Requested Party. The competence to act, direct and control operations belongs to the competent authorities of the Requested Party in its territory.

Article 20 Secret investigations

1. The Parties may agree to assist each other in conducting investigations of crimes by officials acting behind the scenes or under cover, except in cases contrary to the national legislation of the Requested Party. 2. The decision on the request is made on a case-by-case basis by the competent authorities of the Requested Party, taking into account its national legislation 1. The Parties may agree to assist each other in conducting investigations of crimes by officials acting behind the scenes or under cover, except in cases contrary to the national legislation of the Requested Party. 2. The decision on the request is made on a case-by-case basis by the competent authorities of the Requested Party, taking into account its national legislation. The duration of the secret investigation, the detailed conditions and the legal status of the relevant officials during the secret investigation are agreed upon by the Parti duration of the secret investigation, the detailed conditions and the legal status of the relevant officials during the secret investigation are agreed upon by the Parties with due regard to their national legislation. 3. Secret investigations are conducted in accordance with the national legislation of the Party in whose territory the secret investigation is conducted. The parties cooperate to ensure the preparation and control of a covert investigation and take measures to ensure the safety of employees operating behind the scenes or undercover.

Article 21 Joint investigation teams

1. The competent authorities of both Parties may establish a joint investigation team for specific cases and for a limited period, which may be extended by mutual agreement, to conduct a criminal investigation in one of the Parties. The composition of the group must be agreed upon. 2. A joint investigation team may be formed, in particular, when: a) the investigations conducted by the competent authorities of both Sides are complex and req 1. The competent authorities of both Parties may establish a joint investigation team for specific cases and for a limited period, which may be extended by mutual agreement, to conduct a criminal investigation in one of the Parties. The composition of the group must be agreed upon. 2. A joint investigation team may be formed, in particular, when: a) the investigations conducted by the competent authorities of both Sides are complex and require joint activities with the other Party.; (b) The competent authorities of both Parties shall conduct investigations of crimes in which the circumstances of the case require coordinated and coordinated action by both Parties. A request for the creation of a joint investigation team may be made by either Party. 3. In addition to the information specified in the relevant provisions of article 3 of this Treaty, requests for the establishment of a joint investigation team should contain proposals on the composition of the group. 4. Investigative measures are carried out bigative measures are carried out by members of the joint investigation team of the Party in whose territory they are conducted. 5. Agreements regarding the participation in the activities of the joint investigation team of other persons who are not representatives of the competent authorities of the Parties that created such a group may be reached to the extent permitted by the national legislation of the Parties or the provisions of any legal instrument applicable between them.

Article 22 Voluntary transfer of information

1. Without prejudice to their own investigations or proceedings, the competent authorities of either Party may, without prior request to this effect, transmit to the competent authorities of the other Party information obtained in their own investigation when they consider that such information will help the receiving Party initiate or complete an investigation or proceedings, or when such information may be the reason for sending a request to the other By a Party in accordance with this Agreement. 2. The providing Party may, in accordance with its national legislation, impose conditions on the use of such information by the receiving Party. The receiving Party complies with these conditions. 3. This Article also applies to the transmission of information provided by private individuals to the competent authorities of the Parties related to acts falling under the jurisdiction of the other Party.

Article 23 Protection of personal data

1. Personal data transferred by one Party to the other Party for the purpose of fulfilling a request made in accordance with this Agreement may be used by the Party to which they were transferred only for: (a) The purposes of the proceedings to which this Treaty applies; (b) Other judicial and administrative proceedings directly related to the proceedings referred to in subparagraph (a) of this paragraph; (c) The prevention of an immediate and serious threat to public safety. However, such data may be used for any other purpose with the prior written consent of the Party who provided this information or the interested party. 2. Either Party may refuse to transfer data received during the execution of a request made in accordance with this Agreement, in cases where such data is protected by its national legislation and the other Party does not undertake obligations to ensure the same protection for this data as the first Party. 3. Any of the Parties transmitting data obtained during the execution of a request made in accordance with this Agreement may require the other Party to inform it about the use of such data.

Article 24 Expenses

1. The costs associated with the implementation of this Agreement shall be borne by the Parties in accordance with their national legislation. 2. The requested Party shall bear the costs associated with the execution of the request. In this case, 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 subparagraph (g) paragraph 2 of Article 3 of this Treaty; (b) the costs of travel and stay in the Requesting Party of the persons referred to in Article 8 of this Treaty; (c) The costs arising from the execution of the request pursuant to article 11 of this Treaty; (d) The costs and fees of experts; (e) The costs and fees for translation, interpretation and copying; (f) the costs of storage and transfer of seized items. 3. The requested Party shall bear all costs associated with conducting the hearing by videoconference, with the exception of costs related to the establishment and operation of video communication. 4. When 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 25 Exchange of information on criminal proceedings

Upon request, the Requested Party shall provide the Requesting Party with information on criminal proceedings, previous convictions and sentences imposed against citizens of the Requesting Party.

Article 26 Transfer of court decisions and certificates of criminal prosecution

1. When transmitting a court decision on a criminal case, the Requested Party also provides information about the relevant court proceedings, if the Requesting Party requests it. 2. Criminal record certificates required by the competent authority of the Requesting Party shall be issued if, under the same circumstances, they could have been issued to the competent authorities of the Requested Party.

Article 27 Exemption from legalization and legal force of documents and materials

The documents and materials submitted in accordance with this Agreement do not require any legalization, certification or authentication and are fully acceptable as evidence to the Requesting Party.

Article 28 Relation to 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 Romania - arising as a member State of the European Union.

Article 29 Consultations

Any dispute arising during the interpretation or application of this Agreement shall be resolved through consultations and negotiations between the Parties.

Article 30 Final provisions

1. This Agreement shall be concluded for an indefinite period and shall enter into force thirty (30) days 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. This Agreement may be amended and supplemented by mutual agreement of the Parties, which are formalized by separate protocols that are an integral part of it and enter into force in accordance with the provisions specified in paragraph 1 of this article. 3. This Agreement shall terminate upon the expiration of one hundred and eighty (180) days from the date of receipt, through diplomatic channels, by one of the Parties of a written notification by the other Party of its intention to terminate this Agreement. 4. In the event of termination of this Agreement, the legal assistance measures that were initiated during its validity period remain in force until they are fully implemented. 5. This Treaty also applies to crimes committed before its entry into force.

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

Done in Bucharest on November 14, 2014, in two originals, each in the Kazakh, Romanian and English languages, all texts being equally authentic. In case of disagreement in the interpretation of the provisions of this Agreement, the English text shall prevail.

For the Republic of Kazakhstan For Romania

I confirm the authenticity of the text of the Agreement between the Republic of Kazakhstan and Romania on Legal Assistance in Criminal Matters, signed in Bucharest on November 14, 2014 in Kazakh, Romanian and English with the text in Russian.

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

President

Republic of Kazakhstan

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