On the ratification of the Convention of the Member States of the Commonwealth of Independent States on the Transfer of Execution of Non

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On the ratification of the Convention of the Member States of the Commonwealth of Independent States on the Transfer of Execution of Non–Custodial Sentences

The Law of the Republic of Kazakhstan dated April 19, 2021 No. 32-VII SAM.

PRESS RELEASE

To ratify the Convention of the Member States of the Commonwealth of Independent States on the Transfer of Execution of Non–Custodial Sentences, done in Ashgabat on October 11, 2019, with the following reservation: "The Republic of Kazakhstan declares that the term "legal representative" referred to in Articles 2, 3 and 4 of this Convention for the Republic of Kazakhstan will be understood as the term "defender" in accordance with the criminal procedure and civil procedure legislation of the Republic of Kazakhstan.".

President of the Republic of Kazakhstan

K. TOKAEV

CONVENTION of the Member States of the Commonwealth of Independent States on the Transfer of Execution of Non–Custodial Sentences

Officially certified text

The Member States of the Commonwealth of Independent States participating in this Convention, hereinafter referred to as the Contracting Parties,

Striving to further strengthen international cooperation and expand mutual assistance in the field of criminal justice based on the principles of respect for State sovereignty and non-interference in the internal affairs of States,

Aware that the supervision (control) of convicted persons who have been subjected to non-custodial sentences and/or criminal law measures in the State of which they are citizens contributes to their speedy and effective return to normal life in society,

Considering that the serving of sentences by convicted persons in the State of which they are citizens contributes to a more effective achievement of the goal of punishment execution,

Convinced that the social rehabilitation of convicted persons and the expansion of the use of alternatives to deprivation of liberty would be facilitated by measures ensuring the possibility of executing non-custodial sentences and/or criminal law measures in the State of which they are citizens,

guided by the principle of humanity,

have agreed on the following:

Article 1 Scope of application

1. This Convention regulates the relations of the Contracting Parties on the execution of non-custodial sentences and (or) the application of criminal law measures imposed by a court of the State of sentencing against a citizen of the State of punishment.

2. The provisions of this Convention shall apply to judicial decisions (sentences) on the basis of which non-custodial sentences have been imposed and/or criminal law measures have been applied that have entered into legal force.

3. This Convention does not apply to matters related to the enforcement of court decisions on the establishment of compulsory medical measures, as well as sentences according to which a fine or other punishment of a property nature, as well as confiscation, is determined as punishment.

Article 2 Definitions

For the purposes of this Convention, the terms mean the following:

a) "State of execution of punishment" - a Contracting Party that executes a non-custodial sentence against its citizen sentenced to such punishment, and (or) applies a criminal law measure based on the submitted materials.;

b) "The State of sentencing" means the Contracting Party whose court has issued a court decision (verdict) on the imposition of a non-custodial sentence and (or) the application of a criminal law measure.;

c) "legal representative" - a person who, in accordance with the national legislation of a Contracting Party, defends the personal and property rights and legitimate interests of a convicted person;

d) "competent authority" means the body authorized by a Contracting Party to implement the provisions of this Convention.;

e) "measures of a criminal law nature" - suspended sentence, postponement of serving (execution) of the imposed punishment;

f) "non-custodial punishment (punishment)" means any punishment imposed by a court, with the exception of punishment involving the isolation of the convicted person from society or the death penalty, a fine or other property punishment.;

g) "convicted person" means a foreign citizen convicted in the State of sentencing, who has been sentenced to a non-custodial sentence, and (or) to whom a criminal law measure has been applied.;

h) "transfer of execution of punishment" - sending by the State of sentencing to the State of execution of punishment materials on the execution of non-custodial sentences and (or) measures of a criminal-legal nature;

i) "acceptance of punishment for execution" - receipt by the competent authority of the State of execution of punishment of a court decision (sentence) and making a decision on its execution;

k) "judicial decision (verdict)" is a court decision on the imposition of a non-custodial sentence and (or) the application of a criminal law measure.

Article 3 The right to apply for transfer of execution of punishment

1. Any convicted person to whom this Convention may be applied shall be informed by the sentencing State of the contents of this Convention, as well as of the legal consequences of transferring the execution of the sentence.

2. The convicted person or his legal representative may apply for the transfer of the execution of punishment to the State of sentencing or the State of Execution of Punishment.

3. The competent authority of the Contracting Party to which the request for transfer of the execution of the sentence has been received shall inform in writing of the decision taken (on requesting transfer of the execution of the sentence or on refusal) to the person who applied for transfer to the convicted person or his legal representative. The decision to refuse must be motivated.

Article 4 Requests and responses

1. The competent authority of a Contracting Party, on the basis of a petition from a convicted person or his legal representative, shall request that the execution of the sentence be transferred to the competent authority of the other Contracting Party.

The request for transfer of execution of punishment can come from both the State of destination of punishment and the State of Execution of punishment.

2. The request for the transfer of the execution of punishment and the response to it shall be drawn up in writing and transmitted through the competent authorities.

Documents transmitted by the competent authorities of the Contracting Parties in accordance with the conditions provided for in this Convention do not need to be legalized if they are certified by the competent authority of the Contracting Party that sent the request.

These documents can be sent by fax, e-mail or other similar type of communication, provided that their originals are submitted as soon as possible.

3. The competent authority of the Contracting Party to which the request for transfer of the execution of punishment has been sent shall notify the competent authority of the Contracting Party that sent the request as soon as possible of the decision taken on it, indicating the reasons in case of refusal to transfer the execution of punishment.

4. The competent authority of the State of sentencing, upon receipt of a request for transfer of execution of punishment, shall attach to the request addressed to the competent authority of the State of execution of punishment:

a) information about the identity of the convicted person (surname, first name, patronymic (if any), date and place of birth, place of residence and, if possible, registration address);

b) documents attesting to the convicted person's citizenship;

c) copies of the court decision (verdict) and the decisions of higher judicial authorities available in the case, as well as documents on their entry into force;

d) a document on the non-custodial part of the sentence served by the convicted person, the executed measure of a criminal law nature and the part of the punishment that is subject to further serving or execution, as well as a document characterizing the behavior of the convicted person during the period of serving a non-custodial sentence and (or) the execution of a criminal law measure character;

e) a document on the execution of an additional punishment, if it has been imposed;

f) the text of the articles of the criminal law on the basis of which the person was convicted or a criminal law measure was determined against him;

g) the written consent of the convicted person to transfer the execution of the punishment to the State of execution of the punishment;

h) information about the damage and its compensation;

i) a document confirming the explanation to the convicted person of the legal consequences of transferring the execution of punishment to the State of Execution of Punishment and responsibility for evading serving a non-custodial sentence and (or) the execution of a criminal law measure.

5. If a request for transfer of execution of punishment is submitted to the State of execution of punishment, the competent authority of that State shall attach to the request addressed to the competent authority of the State of sentencing the documents specified in sub-paragraphs "a" and "b" of paragraph 4 of this article.

In this case, the competent authority of the Sentencing State shall attach to its response to such a request the documents specified in subparagraphs "c" - "h" of paragraph 4 of this article.

6. If the State of Execution agrees to transfer the execution of the punishment, its competent authority shall attach to its response:

a) written consent to the admission of a convicted person for the execution of a non-custodial sentence and (or) criminal law measures;

b) a certified copy of the decision of the competent authority or court on the recognition and acceptance for execution of a court decision (sentence) with the establishment of the term and, if possible, the procedure and conditions for serving a non-custodial sentence by the convicted person and (or) the execution of a criminal law measure after the transfer of execution of the sentence;

c) certified extracts from the provisions of their legislation, on the basis of which the convicted person will serve a non-custodial sentence, or a criminal law measure will be determined against him;

d) a document confirming the convicted person's citizenship.

7. If necessary, the competent authorities of the Contracting Parties may request additional documents or information.

8. When a court or other competent authority of the State of sentencing makes a decision on consent (refusal) to transfer the execution of punishment, the competent authority of the State of sentencing shall, as soon as possible, notify the competent authority of the State of Sentencing of consent or refusal to transfer the execution of punishment in accordance with this Convention.

Article 5 Refusal to execute the request

1. Execution of the request for transfer of execution of punishment is refused if:

a) an act in connection with which a non-custodial sentence has been imposed and/or a criminal law measure has been applied is a crime against military (military) service, but is not an ordinary crime under the legislation of the State of execution of punishment;

b) an act in connection with which a non-custodial sentence has been imposed and/or a criminal law measure has been applied is not a crime in the State of Execution of the punishment.;

(c) A non-custodial sentence and/or a measure of a criminal nature may not be executed in the territory of the State of execution of the punishment due to the expiration of the statute of limitations or for any other reason provided for by its national legislation.;

d) in the territory of the State of Execution of punishment for an act committed in connection with which a non-custodial sentence was imposed and (or) a measure of a criminal nature, the convicted person was punished or acquitted, or the case was terminated, or he was released from punishment by the authorized body of that State;

e) the convicted person has not consented to serve a non-custodial sentence and (or) criminal law measures in the State of Execution of the sentence;

f) the place of residence of the convicted person has not been established by the State of execution of the sentence;

g) The sentencing State considers that the transfer of execution of punishment may harm its sovereignty, security, public order or other essential interests.

2. The execution of a request for transfer of execution of a sentence may be refused if:

a) the crime is related to the violation of tax and (or) customs legislation;

b) the damage caused by the convicted person's crime and determined by a court decision (verdict) has not been compensated;

c) at the time of receipt of the request, the term of execution of a non-custodial sentence and (or) a measure of a criminal nature is less than 6 months, with the exception of punishment, the duration of which is calculated in hours;

d) the type of non-custodial punishment to which the person has been sentenced and (or) the measure of a criminal law nature applied to him are not provided for by the national legislation of the State of execution of the punishment.

Article 6 Procedure for transfer of execution of punishment

1. If a court or other competent authority of the State of Sentencing and the State of Execution of Punishment decides to transfer the execution of punishment, the competent authorities of the State of sentencing and the State of Execution of Punishment shall coordinate the procedure for transferring a copy of the convicted person's personal or control file certified by the competent authority of the State of sentencing with the documents necessary for execution.

2. The competent authority of the Sentencing State shall inform the convicted person of the decision taken. If it is impossible to inform the convicted person of the decision taken, the competent authority of the State of sentencing shall inform the State of Execution of the punishment, indicating the reasons.

3. Upon notification specified in paragraph 2 of this article, the convicted person is informed of his obligation to leave the territory of the State of sentencing and arrive at the competent authority of the State of execution of Punishment to continue the execution of a non-custodial sentence and (or) a criminal law measure no later than 45 days from the date of informing the convicted person by the competent authority. The sentencing State on the decision taken.

If the transfer of a convicted person to the territory of the State of Execution of Punishment is associated with a threat to his life or health, the period of such transfer is extended until, in the opinion of the State of sentencing, the convict's state of health does not allow this transfer.

4. The procedure for the independent transfer of a convicted person from the State of sentencing to the State of Execution of punishment is regulated by the legislation of these Contracting Parties.

5. In case of failure to fulfill the obligation to leave the territory of the State of destination of punishment within the time period specified in paragraph 3 of this article, the convicted person may be subject to expulsion from the State of destination of punishment in accordance with the procedure established by its legislation.

6. In case of non-fulfillment of the obligation to appear before the competent authority of the State of execution of punishment within the time period specified in paragraph 3 of this article, the convicted person may be liable in accordance with the legislation of the State of execution of punishment.

7. If there is no information about the place of residence of the convicted person, in respect of whom a request has been received for the transfer of execution of the sentence, who has left the State of destination of the punishment to the State of Execution of the punishment, the State of Execution of the punishment shall determine the place of residence of the convicted person and make a decision on accepting the punishment for execution or on refusal in accordance with this Convention.

Article 7 Protection of personal data

The protection of personal data of individuals in the State of sentencing and the State of Execution of Punishment is provided in accordance with the legislation of the State of Sentencing or the State of Execution of Punishment, respectively.

Article 8 Consequences of transfer of execution of punishment for the State of sentencing

The transfer of the execution of punishment to the State of Execution of Punishment deprives the State of sentencing of the powers concerning the execution of the remaining unserved part of the punishment not related to imprisonment and (or) the measures of a criminal law nature assigned to the convicted person.

Article 9 Consequences of transfer of execution of punishment for the State of execution of punishment

1. After the transfer of the execution of the punishment, the further execution of the non-custodial punishment and (or) measures of a criminal-legal nature, including a change in the measure of a criminal-legal nature, commutation of punishment and release from serving the sentence, is carried out in accordance with the legislation of the State of execution of the punishment.

2. A non-custodial sentence imposed on a convicted person and (or) a measure of a criminal nature applied are served on the basis of a decision of the court of the State of execution of the sentence on recognition and enforcement of the court decision (sentence) The State of destination of punishment.

The court of the State of Execution of Punishment, in accordance with the legislation of its State, based on a court decision (sentence), determines the same non-custodial punishment and (or) a measure of a criminal law nature as those imposed by a court decision (sentence). The State of destination of punishment.

3. The punishment imposed by the court of the State of execution of the punishment, which is not related to deprivation of liberty, should not be more severe than established by a court decision (verdict) of the State of sentencing, and a measure of a criminal law nature should not worsen the situation of the convicted person.

4. A part of a non-custodial sentence and (or) a measure of a criminal-legal nature executed on the territory of the State of sentencing shall be counted when imposing a non-custodial sentence and (or) applying a measure of a criminal-legal nature by a court of the State of Execution of the punishment.

5. If, according to the legislation of the State of execution of punishment for the relevant crime, the maximum term or amount of punishment not related to imprisonment and (or) a measure of a criminal law nature is less than that imposed (applied) by a court decision (sentence), the court of the State of Execution of Punishment determines the maximum term or amount provided for by the legislation of that State.

6. If the criminal legislation of the State of Execution of punishment does not provide for a type of punishment not related to deprivation of liberty, which is imposed in the State of sentencing, a milder type of punishment may be imposed, provided for by the legislation of the State of execution of punishment.

7. If a court decision (sentence) relates to two or more acts, one or more of which are not recognized as crimes in the State of Execution of Punishment, the court of the State of Execution of Punishment determines which part of the non-custodial punishment and (or) measures of a criminal law nature is applied to the act that is a crime.

8. A decision on the execution of an additional punishment not involving deprivation of liberty shall be taken by the court of the State of execution of the punishment, if such punishment for the committed act is provided for by the legislation of that State. Additional punishment is executed in accordance with the procedure provided for in this article.

9. The State of execution of punishment shall terminate the execution of a court decision (sentence) immediately after receiving from the State of sentencing a decision or notification of the measure taken, as a result of which the punishment and (or) a measure of a criminal nature are no longer enforceable.

10. The responsibility of a convicted person for evading serving a non-custodial sentence and (or) executing a measure of a criminal nature on the territory of the State of Execution of the punishment occurs in accordance with the legislation of the State of Execution of the punishment.

Article 10 Review of a court decision (sentence), pardon and amnesty

1. Only the State of sentencing has the right to make decisions on issues of appeal or review of a court decision (sentence).

2. The pardon and amnesty of a person against whom a decision has been made to recognize and enforce a court decision (sentence) is carried out by both the State of sentencing and the State of Execution of Punishment in accordance with its legislation.

3. If, after the transfer of the execution of the punishment, the court decision (sentence) is changed, revised or annulled with the termination of the criminal case in the State of sentencing, a copy of the decision on this is immediately sent for execution to the competent authority of the State of Execution of the punishment.

4. If, after the transfer of the execution of the sentence, the court decision (sentence) is changed or revised in the State of sentencing and a custodial sentence is imposed, a copy of the decision on this is immediately sent to the competent authority of the State of Execution of the sentence.

The State of sentencing and the State of Execution of Punishment shall take measures to organize the execution of a new court decision (sentence) in accordance with their legislation and (or) international obligations.

Article 11 Information

1. The competent authority of the State of Execution of Punishment shall notify the competent authority of the State of sentencing of a court decision taken for the purpose of executing a non-custodial sentence and (or) measures of a criminal law nature on the application of an act of pardon or an act of amnesty to the convicted person.

2. The competent authority of the State of execution of Punishment, upon request of the competent authority of the State of sentencing, informs about the course of serving a non-custodial sentence by a convicted person and (or) applying a criminal law measure after the transfer of execution of punishment.

3. To the extent necessary, the Contracting Parties shall inform each other of all circumstances that may affect the enforcement of a non-custodial sentence and/or the application of a criminal law measure by the competent authority of the Executing State. To this end, they transmit to each other copies of the relevant decisions in the case against the person, the execution of a non-custodial sentence, and (or) the application of a criminal law measure for which they have been transferred.

4. After the convicted person has served a non-custodial sentence and/or has applied a criminal law measure, the competent authority of the State of Execution of the sentence sends a notification to the competent authority of the State of sentencing on the completion of the execution of the non-custodial sentence and/or the application of a criminal law measure.

Article 12 Expenses

The costs associated with the transfer of the execution of punishment shall be borne by the Contracting Parties within their territories in accordance with their legislation.

Article 13 Interaction of the Contracting Parties

The competent authorities of the Contracting Parties shall communicate directly with each other on the issues of this Convention.

Article 14 Languages

1. The documents sent by the Contracting Parties in the framework of the implementation of this Convention must be presented in Russian.

2. In case of execution of documents in other official languages of the Contracting Parties, they shall be accompanied by translations into Russian certified by the competent authority of the sending Contracting Party.

Article 15 Dispute resolution

Disputes arising regarding the interpretation or application of this Convention shall be resolved through consultations and negotiations between the competent authorities of the Contracting Parties.

Article 16 Action in time

The provisions of this Convention shall apply to judicial decisions (sentences) rendered after the entry into force of the Convention.

Article 17 Procedure for entry into force

This Convention shall enter into force 30 days after the date of receipt by the depositary of the third notification that the signatory Contracting Parties have completed the internal procedures necessary for its entry into force.

For Contracting Parties that have completed domestic procedures later, this Convention shall enter into force 30 days after the date of receipt by the depositary of the relevant documents.

Article 18 Procedure for accession to the Convention

After its entry into force, this Convention is open for accession by any State by submitting an instrument of accession to the depositary.

For a member State of the Commonwealth of Independent States, this Convention shall enter into force 30 days after the date of receipt by the depositary of the instrument of accession.

For a State that is not a member of the Commonwealth of Independent States, this Convention shall enter into force 30 days after the date of receipt by the depositary of the last notification of the consent of the signatory or acceding States to such accession.

Article 19 Communications on competent authorities

Each Contracting Party, when notifying the depositary that it has completed the internal procedures necessary for the entry into force of this Convention, shall inform about the designation of its competent authorities.

In the event of a change in the competent authority or its functions, the relevant Contracting Party shall immediately inform the depositary thereof.

Article 20 Making changes

This Convention may be amended by agreement of the Contracting Parties, which are formalized by the relevant protocol.

Article 21 Withdrawal from the Convention

Each Contracting Party may withdraw from this Convention by sending a written notification to the depositary. The Convention for this Contracting Party shall cease to be in force after 90 days from the date of receipt by the depositary of the notification of withdrawal.

The termination of this Convention for a Contracting Party does not prevent the continuation of the execution of sentences in respect of convicted persons to whom this Convention has been applied before the date of termination of its effect for the relevant Contracting Party.

Done in Ashgabat on October 11, 2019, in one original copy in Russian. The original copy is kept in the Executive Committee of the Commonwealth of Independent States, which will send a certified copy to each signatory State of this Convention.

For the Republic of Azerbaijan

For the Russian Federation

For the Republic of Armenia

For the Republic of Tajikistan

For the Republic of Belarus

For Turkmenistan

For the Republic of Kazakhstan

For the Republic of Uzbekistan

For the Kyrgyz Republic

For Ukraine

For the Republic of Moldova

RESERVATION OF THE REPUBLIC OF KAZAKHSTAN to the Convention of the Member States of the Commonwealth of Independent States on the Transfer of Execution of Non–custodial Sentences

The Republic of Kazakhstan declares that the term "legal representative" referred to in articles 2, 3 and 4 of this Convention for the Republic of Kazakhstan will be understood as the term "defender", in accordance with the criminal procedure and civil procedure legislation of the Republic of Kazakhstan.

President Republic of Kazakhstan

K. Tokaev

I hereby certify that the attached text is an authentic copy of the Convention of the member States of the Commonwealth of Independent States on the Transfer of Execution of Non-Custodial Sentences, signed at the meeting of the Council of Heads of State of the Commonwealth of Independent States, which took place on October 11, 2019 in the city of Ashgabat. The original copy of the above-mentioned Convention is kept in the Executive Committee of the Commonwealth of Independent States.

First Deputy Chairman Executive Committee- Executive Secretary of the CIS

V. A. Guminsky

President

Republic of Kazakhstan

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