On the ratification of the Extradition Treaty between the Republic of Kazakhstan and the Republic of Korea

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The Law of the Republic of Kazakhstan dated February 14, 2012 No. 555-IV SAM.

 To ratify the Extradition Treaty between the Republic of Kazakhstan and the Republic of Korea, signed in Seoul on November 13, 2003.

President

Republic of Kazakhstan

N. NAZARBAYEV

contract BETWEEN THE REPUBLIC OF KAZAKHSTAN AND THE REPUBLIC OF KOREA ON EXTRADITION (Bulletin of International Treaties of the Republic of Kazakhstan, 2012, No. 6, Article 80 - entered into force on September 10, 2012)

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

Desiring to ensure more effective cooperation between the two countries in the fight against crime and to regulate relations between the two countries in the field of extradition,

We have agreed on the following:

Article 1 Obligation of extradition

Each Party undertakes to extradite to the other Party, in accordance with the provisions of this Treaty, any person located in the territory of the Requested Party and who is wanted for criminal prosecution or execution in the territory of the Requesting Party for extraditable offences.

Article 2 Extraditable offences

 1. For the purposes of this Treaty, extraditable offences are those offences which, at the time of the request, are punishable under the national laws of both Parties and for which the penalty is imprisonment for a period of at least one year or a heavier penalty.

2. If the extradition request relates to a person sentenced to imprisonment by a court of the Requesting Party for any extraditable offence, extradition is possible only if at least 6 (six) months of imprisonment are subject to execution.

3. For the purposes of this Article, when determining whether it is a crime under the laws of both Parties:

 (a) It does not matter whether the legislation of the Parties places the acts constituting crimes under the same category of crimes or whether the crime is referred to in the same terminology; and

(b) The acts of the person whose extradition is requested are taken into account as a whole and it does not matter if the constituent elements of the crime differ according to the legislation of the Parties.

 4. If extradition is requested for crimes related to violations of customs and tax laws in the field of currency regulation, extradition may not be refused on the grounds that the legislation of the Requested Party does not contain a similar tax or customs norm as the legislation of the Requesting Party.

5. If the crime was committed outside the territory of the Requesting Party, extradition must be granted if the legislation of the Requested Party provides penalties for crimes committed outside its territory under the same circumstances. If the legislation of the Requested Party does not provide for this, the Requested Party may, at its discretion, grant extradition.

 6. If the extradition request relates to several offences, each of which is punishable by the laws of both Parties, but some of which do not comply with the conditions stipulated in paragraphs 1 and 2 of this article, extradition may be granted provided that the person must be extradited for at least one extraditable offence.

Article 3 Mandatory refusal of extradition

The extradition must not be granted under this Agreement in the following circumstances:

1. In the event that the Requested Party decides that the crime for which extradition is required is a political crime or a crime related to a political crime. References to political crimes should not include the following crimes:

(a) the murder or attempted murder or assassination of a person against the Head of State or Head of Government or members of their families; or

(b) an offence in respect of which the Parties have obligations to establish jurisdiction or extradition by virtue of a multilateral international treaty to which both Parties are parties, including but not limited to such international treaties relating to genocide, terrorism, or hostage-taking.

2. In the case when the wanted person is accused, convicted or acquitted in the territory of the Requested Party for a crime in connection with which his extradition is required.

 3. If it is impossible to carry out criminal prosecution due to the expiration of the statute of limitations under the legislation of the Requested Party, if the same crime would have been committed in the Requested Party. Acts or circumstances that suspend the statute of limitations under the legislation of the requesting Party must be taken into account by the Requested Party, in which case the Requesting Party must provide written extracts from its legislation on the statute of limitations.

4. In cases where the requested Party has reasonable grounds to believe that the extradition request is being submitted for the purpose of charging or punishing the wanted person for reasons of race, religion, nationality, gender or political motives, or that the person may be convicted for any of these reasons.

Article 4 Refusal of extradition at discretion

According to this Agreement, refusal of extradition is possible under the following circumstances:

(a) if the person is a national of the Requested Party;

(b) in the case where the crime for which extradition is requested is being investigated under the law of the Requested Party because it was committed in part or in whole on its territory.;

(c) in the case where the wanted person has been acquitted or convicted in a third State for the same crime for which extradition is requested, and if convicted, the sentence has been fully carried out or its enforcement is no longer required.;

(d) In special cases, the requested Party, taking into account the seriousness of the crime and the interests of the requesting Party, may consider it necessary that, due to the personal circumstances of the person sought, extradition would be incompatible with the principles of humanity.;

(e) in the case where the offence for which extradition is sought is an offence under military law but is not considered an offence under ordinary criminal law; or

(f) if the crime for which extradition is required is prosecuted by private prosecution.

Article 5 Capital punishment

If, in accordance with the national legislation of the Requesting Party, the person whose extradition is requested may be subject to the death penalty for the crime for which extradition is requested, and the national legislation of the Requested Party does not provide for the death penalty for such an offence, extradition may be refused if the Requesting Party does not provide sufficient assurances, in the opinion of the Requested Party that the death sentence will not be carried out.

Article 6 Extradition of own citizens

1. Neither Party is obligated to extradite its own citizens under this Treaty, but the Requested Party must have the authority to extradite such a person, at its discretion, if it deems it necessary.

2. If extradition is refused solely on the basis of the nationality of the person being sought, the Requested Party must, at the request of the Requesting Party, provide an opportunity for criminal prosecution. For this purpose, the Requested Party may request the Requesting Party to send the relevant documents.

Article 7 Postponement of extradition and temporary extradition

1. If the person whose extradition is requested has been brought to criminal responsibility or is serving a sentence for another crime in the territory of the Requested Party, extradition may be postponed until the end of the proceedings, serving the sentence or early release, which is notified to the Requesting Party.

 2. If the postponement of extradition may lead to the expiration of the statute of limitations for criminal prosecution or seriously complicate the investigation of a crime, the Requested Party may, at the request of the Requesting Party and in accordance with its legislation, temporarily extradite the person whose extradition is requested.

3. The temporarily extradited person must be returned to the Requested Party immediately after the end of the proceedings or at the end of the mutually agreed period of temporary extradition. The requested Party may extend, upon request, the period of temporary extradition, if there are sufficient grounds for such an extension.

Article 8 Issuance procedure and necessary documents

1. An extradition request must be submitted in writing through diplomatic channels.

2. The request for extradition must include:

(a) identification documents and, if possible, establishing the nationality and location of the wanted person;

(b) a description of the factual circumstances of the case;

(d) the text of the law prescribing the punishment for the crime; and

(e) the text of the law relating to the limitation of the time of criminal prosecution or execution of punishment for a crime.

3. In cases where the extradition request relates to a person who has not yet been found guilty, it should include:

(a) a copy of the arrest or detention order issued by a judge or other competent authorities of the Requesting Party;

(b) information establishing that the wanted person is the person to whom the arrest or detention order relates; and

(c) a statement of the facts proving the existence of a crime and evidence indicating that the wanted person has committed the crime for which extradition is requested.

4. In cases where the extradition request relates to the perpetrator, the request must include:

(a) a copy of the judgment rendered by the court of the Requesting Party;

(b) information establishing that the wanted person is the person found guilty; and

5. All documents must be certified and submitted by the Requesting Party in accordance with the requirements of this Agreement, including a translation into the language of the Requested Party or into English.

6. A document is considered certified for the purposes of this Agreement if it is signed or certified by a judge or other authorized person of the Requesting Party and sealed with the official seal of the competent authority of the Requesting Party.

Article 9 Additional information

1. If the Requested Party considers that the information provided in the extradition request is not sufficient under this Treaty to grant extradition, it may request additional information within the agreed time.

2. If the person whose extradition is requested is under arrest and the additional information provided is insufficient in accordance with this Agreement or is not received within the agreed time, the person may be released from custody. Such an exemption should not prevent the Requesting Party from submitting a new extradition request.

3. If a person is released from custody in accordance with paragraph 2 of this Article, the Requested Party must promptly notify the Requesting Party.

Article 10 Detention of a person pending the receipt of an extradition request

 1. In urgent cases, a Party may request the temporary arrest of a wanted person, pending the submission of an extradition request. A request for temporary arrest may be submitted through diplomatic channels, or directly through the Prosecutor General's Office of the Republic of Kazakhstan and the Ministry of Justice of the Republic of Korea.

2. The request for temporary arrest is made in writing and must contain:

(a) identification data, description of the wanted person, including information about his nationality;

(b) if the location of the wanted person is known;

(c) a summary of the circumstances of the case, including, if possible, the time and place where the crime was committed;

(d) the text of the law on the basis of which the act is recognized as a crime;

(e) confirmation of the existence of orders of arrest or detention, or of a court verdict that has entered into force; and

f) confirmation that a request for extradition of the wanted person will be submitted.

3. Upon receipt of such a request, the Requested Party must take the necessary steps to ensure the arrest of the wanted person and the Requested Party must be notified immediately of the result.

 4. The arrested person may be released if the Requesting Party fails to provide the extradition request with the relevant documents specified in Article 8 of this Treaty within forty (40) days from the date of arrest, provided that this should not prevent the consideration of the extradition request of the wanted person, if the request is subsequently received.

Article 11 Simplified extradition

If the wanted person notifies the court or other competent authorities of the Requested Party that he agrees to extradition, the Requested Party must take all necessary measures to expedite the extradition procedure, in accordance with its legislation.

Article 12 Competing requests

1. If requests are received from two or more States for the extradition of one person or for the same crime, the Requested Party must determine which State the person should be extradited to and must notify that State of its decision.

2. When determining the State to which a person is to be extradited, the Requested Party must take into account all factors, including, but not limited to:

(a) the nationality and place of residence of the wanted person;

(b) whether the requests were made in accordance with an international agreement;

(d) the relevant interests of the Requesting States;

(e) The gravity of the crimes committed;

(f) Nationality of the victim;

(g) the possibility of further extradition between Requesting States;

(h) the dates of the requests.

Article 13 Transfer of a person

1. The requested Party is obliged, as soon as the decision on the extradition request is made, to inform the Requesting Party about this decision. In this case, the Requesting Party must be notified of the reasons for any complete or partial refusal of the extradition request.

2. The requested Party must transfer the wanted person to the competent authorities of the Requesting Party in the territory of the Requested Party acceptable to both Parties.

3. The Requesting Party must remove the person from the territory of the Requested Party within a time period to be determined by the Requested Party and, if the person is not removed within that time period, the Requested Party may release the person from custody and may refuse extradition for the same offence.

4. If exceptional circumstances prevent a Party from removing the extradited person, the other Party shall be notified, in which case the conditions of paragraph 3 of this article shall not apply. Both Parties must mutually agree on a new date for the transfer of the person in accordance with the terms of this article.

Article 14 Transfer of ownership

1. If the extradition request is granted, in accordance with the legislation of the Requested Party and taking into account the rights of third parties, all property found in the territory of the Requested Party that was acquired as a result of a crime or may be required as material evidence must be transferred upon request of the Requesting Party.

2. According to paragraph 1 of this Article, the above-mentioned property must be transferred to it at the request of the Requesting Party, even if extradition cannot be granted due to the death, disappearance or escape of the wanted person.

3. If the property referred to in paragraph 1 of this Article is required for the investigation of a criminal case, the Requested Party may temporarily postpone its transfer until the completion of the criminal proceedings.

4. If the legislation of the Requested Party or the rights of third parties so require, any transferred property must be returned free of charge to the Requested Party upon its request.

Article 15 Special Rule

1. A person extradited under this Treaty may not be detained, charged, or punished by the Requesting Party, except:

(a) for a crime for which extradition has been granted or for another so-called crime based on the same facts for which extradition has been granted;

(b) for an offence committed after the extradition of the person; or

(c) for an offence for which the Requested Party consents to the detention, charge or punishment of the extradited person;

For the purposes of paragraph 1 of this article:

 (i) The requested Party may require the submission of the documents referred to in Article 8 of this Treaty;

(ii) legal evidence of the crimes committed by the extradited person must be provided to the Requested Party; and

(iii) the extradited person may be detained by the Requesting Party until such time as the Requested Party may consider the request.

2. A person extradited under this Treaty may not be extradited to a third State for a crime committed prior to his extradition without the consent of the Requested Party.

3. Paragraphs 1 and 2 of this Article shall not prevent the detention, indictment or conviction of an extradited person, or the extradition of that person to a third State, if:

(a) the person leaves the territory of the Requesting Party after extradition and returns there voluntarily; or

(b) the person does not leave the territory of the Requesting Party within 45 days from the date on which the person has the opportunity to leave it freely.

Article 16 Notifications of results

The requesting Party is obliged to inform the Requested Party in a timely manner about the results of the investigation of the criminal case or the execution of punishment against the extradited person or about the transfer of the person to a third State.

Article 17 Transit

 1. To the extent permitted by law, the transportation of a person extradited by one of the Parties to a third State through the territory of the other Party must be authorized upon written request transmitted through diplomatic channels or directly through the Prosecutor General's Office of the Republic of Kazakhstan and the Ministry of Justice of the Republic of Korea. The request must contain the data of the person to be transported in transit, including information about nationality, as well as a brief description of the circumstances of the case.

2. The Prosecutor General's Office of the Republic of Kazakhstan and the Ministry of Justice of the Republic of Korea will coordinate the route and other conditions of transit transportation.

3. A transit permit will not be required when using air transport and no landing is planned on the territory of the Transit State. If an unplanned landing takes place on the territory of one of the Parties, this may require sending a transit request, as provided for in paragraph 1 of this Article. The transit State detains the transported person and holds him in custody until the transportation is resumed, provided that the request is received within ninety-six (96) hours after the unplanned landing.

Article 18 Costs

1. The requested Party shall bear the costs of any extradition procedures in its jurisdiction.

2. The requested Party shall bear the costs incurred in its territory in connection with the arrest and detention of the person whose extradition is required, or the confiscation and transfer of property.

3. The requesting Party shall bear the costs associated with the transfer of the person whose extradition is provided from the territory of the Requested Party and transit transportation.

Article 19 Consultations

1. The Parties may consult, at the request of either Party, on the interpretation of this Agreement.

2. The competent authorities of both Parties may consult with each other directly in connection with the resolution of specific requests and in assistance to improve the effectiveness of the implementation of this Agreement.

Article 20 Entry into force and termination of the Agreement

1. This Treaty is subject to ratification and enters into force after the exchange of instruments of ratification.

2. This Treaty applies to crimes committed before and after the date of entry into force of the Treaty.

3. Any Party may terminate this Agreement at any time by sending a written notification. The Agreement shall terminate upon the expiration of six (6) months after receipt of such notification.

IN WITNESS WHEREOF, the undersigned, duly authorized by their respective Governments, have signed this Treaty.

Done in Seoul on November 13, 2003, in two original copies, each in the Kazakh, Korean, Russian and English languages, all texts being authentic. In case of disagreement in the interpretation of the provisions of this Agreement, the Parties will refer to the English text.

For the Republic of Kazakhstan

For the Republic of Korea

President

Republic of Kazakhstan

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