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

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The Law of the Republic of Kazakhstan dated November 25, 2019 No. 271-VI SAM.

To ratify the Extradition Treaty between the Republic of Kazakhstan and Ukraine, signed in Astana on October 29, 2018.

President of the Republic of Kazakhstan

K. TOKAEV

EXTRADITION TREATY BETWEEN THE REPUBLIC OF KAZAKHSTAN AND UKRAINE

(Entered into force on July 9, 2020, Bulletin of International Treaties of the Republic of Kazakhstan 2020, No. 4, Article 19)

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

Desiring to promote effective legal cooperation between the two States in order to counter crime, based on mutual respect for sovereignty and equality,

Bearing in mind that this goal can be achieved through the conclusion of a bilateral agreement establishing joint actions in matters of extradition,

We have agreed on the following:

ARTICLE 1 OBLIGATION OF EXTRADITION

Each Party undertakes, in accordance with the terms of this Agreement, to extradite to the other Party persons located on its territory who are wanted by the Requesting Party for the purpose of criminal prosecution or the enforcement of an effective court verdict for extraditable offences.

ARTICLE 2 EXTRADITABLE OFFENCES

1. For the purposes of this Treaty, extraditable offences are those acts which, in accordance with the national legislation of both Parties, are criminally punishable and for which a penalty of at least one (1) year's imprisonment or a more severe penalty is provided.

2. If the extradition request relates to a person who is wanted to carry out a court sentence for an extraditable offence, extradition is possible if the person has been sentenced to imprisonment and the unserved term is at least six (6) months.

3. When defining a crime in accordance with paragraph 1 of this Article, it does not matter whether the legislation of the Parties relates the act constituting this crime to a similar category of crimes or whether this crime is designated by the same or different terminology.

4. In respect of offences related to violations of customs, tax and currency regulation legislation, extradition may not be refused on the grounds that the national legislation of the Requested Party does not provide for tax and customs rules or regulations in the field of currency regulation similar to the national legislation of the Requesting Party.

5. If the crime was committed outside the territory of the Requesting Party, extradition is carried out if the national legislation of the Requested Party provides for punishment for crimes committed outside its territory under the same circumstances.

6. If the request for the extradition of a person relates to two or more crimes, each of which is punishable by the national legislation of both Parties, but some of them do not contain the features provided for in paragraphs 1 and 2 of this Article, the Requested Party has the right to authorize the extradition of the person in respect of all crimes.

ARTICLE 3 MANDATORY GROUNDS FOR REFUSAL

1. The extradition must be refused if:

(a) The requested Party considers that the offence referred to in the request is political. Extradition is also refused if the Requested Party has good reason to believe that the request for extradition for a common crime is related to the purpose of charging or punishing the wanted person on the basis of race, religion, nationality, citizenship, gender, social status, ethnicity, or political beliefs.;

(b) Under the national legislation of the Requesting Party, the offence for which extradition is requested is punishable by death, unless the Requesting Party provides the Requested Party with sufficient guarantees that the death penalty will not be imposed on the person sought, and if so, will not be carried out.;

(c) The requested Party has reason to believe that in the Requesting Party a person wanted for a crime has been or will be subjected to punishment or other action or omission that does not ensure respect for fundamental human rights, including the right to protection from cruel, inhuman or degrading treatment;

(d) At the time of receipt of the extradition request, criminal proceedings cannot be initiated or the sentence cannot be carried out due to the expiration of the statute of limitations or for any other reason in accordance with the national legislation of the Requested Party.;

(e) In respect of the person whose extradition is requested, a court verdict has been passed in the territory of the Requested Party for the same act, which has entered into legal force, or an order to terminate the prosecution, or the person has been released from criminal liability on any legitimate basis.;

(f) The requested Party considers that the extradition of the person may prejudice its sovereignty, national security, public order or other interests, or is contrary to its national legislation;

(g) Extradition is requested for a military offence, which has no parallel in the ordinary criminal law of the Requested Party.

2. For the purposes of this Treaty, the following crimes will not be considered political:

a) murder, abduction, or other threat to a person's life or health or freedom;

b) threatening, attempting, or participating as an accomplice in the murder, abduction, or other serious threat to the life, health, or freedom of the head of State or Government, or members of their families;

(d) Any other act in respect of which the Parties have undertaken to treat it as an extraditable offence on the basis of an international treaty.

3. If the Requested Party intends to refuse to extradite a person on the basis of subparagraph (d) of paragraph 1 of this Article, it should consult with the Requesting Party.

4. Extradition is refused if the verdict was passed in absentia and the Requesting Party has not provided guarantees of its appeal.

ARTICLE 4 OPTIONAL GROUNDS FOR REFUSAL

The extradition of a person may be refused if:

(a) The offence for which extradition is requested falls under the jurisdiction of the Requested Party in accordance with its national law and the person sought is under investigation or being prosecuted for the same offence.;

(b) The requested Party, taking into account the gravity of the crime and the interests of the Requesting Party, considers that the extradition of the person would be incompatible with considerations of humanity due to the age, state of health or other personal circumstances of the person sought. In these cases, instead of refusing to extradite a person, the Requested Party has the right to delay extradition until the reasons for believing that extradition will have grave consequences for the wanted person are eliminated.;

(c) The person in respect of whom an extradition request has been received has been granted asylum by the Requested Party.

ARTICLE 5 EXTRADITION OF OWN CITIZENS

1. Each Party has the right to refuse to extradite its own citizens on the basis of its national legislation.

2. In case of refusal to extradite its national, the Requested Party, at the request of the Requesting Party, must subject that person to criminal prosecution or enforce the sentence of the court of the Requesting Party that has entered into force in accordance with its national legislation. For this purpose, the Requesting Party, through the central authorities specified in Article 6 of this Treaty, shall provide the materials of the criminal case, as well as the available judicial acts that have entered into force, evidence and any other documents and information at its disposal.

3. The Requested Party shall promptly inform the Requesting Party of the actions taken on such request and of the outcome of the proceedings in the case.

ARTICLE 6 CENTRAL AUTHORITIES OF THE PARTIES

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 Ukraine, it is the Prosecutor General's Office of Ukraine (at the stage of pre-trial investigation) or the Ministry of Justice of Ukraine (at the stage of judicial review and execution of sentences).

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 7 REQUEST FOR EXTRADITION OF A PERSON AND NECESSARY DOCUMENTS

1. An extradition request shall be drawn up in writing, signed by an authorized person and must contain:

a) first name, patronymic and surname, date and place of birth, gender, nationality, details of the identity document and any other information that may contribute to the identification of the wanted person and his location, as well as, if available, identification data, photographs and fingerprints;

(b) Information on the circumstances of the crime in connection with which the extradition request has been made, indicating the date and place of its commission;

(c) The text of the relevant law describing the offence for which extradition has been requested and prescribing the penalty for it;

(d) The text of the relevant law governing the statute of limitations for criminal prosecution or execution of punishment for a crime, and information on its application in relation to the crime specified in the request;

(e) When the offence for which extradition is requested has been committed outside the territory of the Requesting Party, the text of the relevant law providing for the jurisdiction of the Requesting Party for such offences.

2. In addition to the requirements of paragraph 1 of this article, an extradition request must be accompanied by:

a) certified copies of the court's decision on detention, as well as a document on the qualification of a criminal act, if the request is related to criminal prosecution;

b) a certified copy of the court verdict that has entered into force, a certificate of the parts of the sentence served and to be served, if the request is related to the execution of the sentence.

3. The request for extradition and the necessary documents must be drawn up in the language of the Requesting Party and accompanied by a certified translation into the language of the Requested Party or into Russian.

4. The request for extradition and the necessary documents are certified by the seal of the authority from which they originate.

ARTICLE 8 ADDITIONAL INFORMATION

1. If the information accompanying the extradition request is insufficient for the Requested Party to make a decision in accordance with this Agreement, it has the right to request additional information, which must be provided within thirty (30) days from the date of receipt of such request. This period may be extended by agreement between the central authorities.

2. If the wanted person is under arrest and additional information is not received within the period specified in paragraph 1 of this article, the person may be released from custody. However, such release should not prevent the re-arrest and extradition of the wanted person if additional information becomes available in the future.

ARTICLE 9 ADMISSIBILITY OF DOCUMENTS

The documents submitted in accordance with this Agreement do not require any legalization, certification or authentication in the Requested Party.

ARTICLE 10 DECISION

1. The decision on the extradition request is made in accordance with this Treaty and the national legislation of the Requested Party. The Requesting Party shall be notified of the decision immediately.

2. If the Requested Party refuses to extradite the person, the refusal must be motivated.

ARTICLE 11 SIMPLIFIED EXTRADITION

If the wanted person agrees to be extradited, the Requested Party applies a simplified extradition procedure, if this is provided for by its national legislation.

ARTICLE 12 SPECIAL RULE

1. A person extradited in accordance with this Treaty may not be detained, prosecuted, punished or convicted by the Requesting Party, except for:

(a) Any crime for which a person has been extradited, or a crime with a different name, but based on the same actions or omissions as the crime for which extradition has been granted, if such crime entails extradition;

(b) Any crime committed after extradition; or

(c) Any offence for which the consent of the central authority of the Requested Party has been obtained. For this purpose, the Requested Party may require the provision of the documents specified in Article 7 of this Treaty.

2. Without the consent of the Requested Party, a person extradited in accordance with this Treaty may not be extradited by the Requesting Party to a third State for any crime committed prior to his extradition.

3. Paragraphs 1 and 2 of this article shall not prevent the detention, criminal prosecution, conviction or punishment of an extradited person, or his extradition to a third State, if:

(a) After extradition, the person has left the territory of the Requesting Party and then returned voluntarily; or

b) the said person has not left the territory of the Requesting Party within thirty (30) days from the moment when he had the opportunity to do so freely.

ARTICLE 13 TEMPORARY ARREST

1. 1. At the request of the Requesting Party, the wanted person may be arrested before receiving a request for his extradition.

2. The request for temporary arrest must contain:

(a) The information provided for in subparagraph (a) of paragraph 1 of Article 7 of this Treaty;

b) if known, the location of the wanted person;

(d) Applicable provisions of the criminal law;

(e) A reference to a court decision on detention or to a court verdict; and

f) guarantees that the request for extradition of the wanted person will be submitted within the time limits set by this Treaty.

A request for temporary arrest can be submitted by the central authorities of the Parties directly using technical means of communication or through the International Criminal Police Organization (Interpol). The original request must be sent simultaneously by mail.

3. The requested Party is obliged to immediately inform the Requesting Party of the results of the examination of the request for temporary arrest.

4. If, after forty (40) days from the date of the person's arrest, the central authority of the Requested Party has not received an extradition request, the arrested person shall be released. The release of a person should not prevent re-arrest for the purpose of extradition if an extradition request is received later.

ARTICLE 14 COMPETING REQUESTS

1. If the Requested Party receives an extradition request for the same person from two or more States, including the Requesting Party, for the same or for different crimes, the Requested Party shall, at its discretion, determine which State the person will be extradited to.

2. When making a decision in accordance with paragraph 1 of this Article, the Requested Party shall take into account the following:

a) have the requests been sent on the basis of international treaties;

(b) Interests of the requesting States;

(d) The possibility of subsequent extradition between requesting States; and

(e) The chronological order in which requests are received from requesting States.

ARTICLE 15 TRANSFER OF THE EXTRADITED PERSON

1. The requested Party shall notify the Requesting Party of the place and time of the transfer of the extradited person. If the Requesting Party does not receive the person within fifteen (15) days after the agreed transfer date, the person must be released from custody. The requested Party has the right to reject a repeated extradition request against this person for the same crime, except in the case provided for in paragraph 2 of this article.

2. If circumstances beyond the control of the Parties prevent the transfer of a person, the central authorities of the Parties must agree on a new date and other necessary conditions for the transfer.

3. The time of a person's detention for the purpose of extradition is counted towards the total time limit for the execution of a court sentence in the Requesting Party.

4. If, after the transfer, the extradited person has absconded from criminal prosecution or evaded the execution of a court verdict and returned to the territory of the Requested Party, the Requested Party has the right to re-extradite him on the basis of a new extradition request.

ARTICLE 16 POSTPONEMENT OF EXTRADITION OR TEMPORARY EXTRADITION

1. If a wanted person is being prosecuted in the Requested Party or is serving a sentence for committing a crime other than the one for which extradition is requested, the Requested Party has the right, after making a decision to extradite the person, to delay his transfer until the end of the trial or until the execution of the court verdict. In the event of such a delay, the Requested Party shall immediately notify the Requesting Party.

2. Nevertheless, at the request of the Requesting Party, the Requested Party has the right to temporarily extradite the wanted person on mutually agreed terms between the central authorities. A person who has been temporarily extradited is detained during the period of his stay in the territory of the Requesting Party and is re-transferred to the Requested Party within the agreed period. The time of a person's detention in the Requesting Party shall be counted towards the total period for the execution of a court sentence imposed in the Requested Party.

3. The transfer of an extradited person may also be postponed when, due to the health condition of the person, it may endanger his life or worsen his health condition. In this case, the Requested Party must provide the Requesting Party with a detailed medical report issued by its competent institution.

ARTICLE 17 SEIZURE AND TRANSFER OF OBJECTS AND DOCUMENTS

1. At the request of the Requesting Party, the Requested Party, in accordance with its national legislation, must seize and transfer the items and documents found in the possession of the wanted person, which were obtained as a result of a crime or may serve as evidence. In this case, the items and documents are transferred, if possible, during the transfer of the issued person.

2. With the consent of the Requested Party, the items and documents referred to in paragraph 1 of this Article may be transferred even if it is impossible to extradite the person.

3. For the purpose of conducting other criminal proceedings, the requested Party has the right to temporarily retain the items and documents or transfer them on the terms of return.

4. The transfer of seized items and documents to the Requesting Party is carried out without prejudice to the rights of the Requested Party or third parties.

ARTICLE 18 TRANSIT

1. Each Party, in accordance with its national legislation and without prejudice to its interests, permits the transit through its territory of a person extradited to the other Party by a third State.

2. For this purpose, the Requesting Party shall send to the Requested Party, through the central authorities or, in particularly urgent cases, through the International Criminal Police Organization (Interpol), a transit request containing information on the identity of the person being transported, information on his nationality and a summary of the circumstances of the case. The transit request is accompanied by a copy of the document confirming the person's extradition.

3. The requested Party must detain the person being transported in its territory.

4. A transit permit is not required if it is carried out by air and landing on the territory of the transit State is not planned. In the event of an unplanned landing, the transit State shall immediately notify the transit State, which must detain the person being transported for up to fifteen (15) days pending a transit request.

ARTICLE 19 EXPENSES

1. The Parties shall bear the expenses related to the implementation of this Agreement in accordance with their national legislation.

2. The requested Party shall bear in its territory the costs associated with the arrest of a person for the purpose of extradition, the costs associated with the seizure and storage of items and documents provided for in Article 17 of this Treaty, as well as the costs that may arise during the extradition process.

3. The Requesting Party shall bear the costs associated with the transportation of the extradited person and any items and documents transferred by the Requested Party.

ARTICLE 20 INFORMING ABOUT THE RESULTS

The requesting Party provides information on the criminal prosecution, judicial proceedings, or the enforcement of a court verdict against the extradited person. At the request of the Requested Party, the central authority of the Requesting Party shall provide copies of the relevant decisions.

ARTICLE 21 RELATIONSHIP WITH OTHER INTERNATIONAL TREATIES

This Agreement does not affect the rights and obligations of the Parties arising from other international treaties to which they are parties.

ARTICLE 22 CONSULTATIONS

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

ARTICLE 23 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. Amendments and additions may be made to this Agreement by mutual agreement of the Parties, which are formalized by separate protocols, which are its integral parts, which enter into force in accordance with the procedure provided for 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, measures for the extradition of persons that were initiated during its validity period remain in force until they are fully implemented.

5. This Agreement 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 Astana on October 29, 2018, in two copies, each in the Kazakh, Ukrainian 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 UKRAINE

President

Republic of Kazakhstan

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