On the ratification of the Treaty between the Republic of Kazakhstan and the Republic of Korea on Mutual Legal Assistance in Criminal Matters

Home / RLA / On the ratification of the Treaty between the Republic of Kazakhstan and the Republic of Korea on Mutual Legal Assistance in Criminal Matters

The Law of the Republic of Kazakhstan dated July 8, 2011 No. 453-IV

To ratify the Agreement between the Republic of Kazakhstan and the Republic of Korea on Mutual Legal Assistance in Criminal Matters, signed in Seoul on November 13, 2003.

 President of the Republic of Kazakhstan N. Nazarbayev

contract BETWEEN THE REPUBLIC OF KAZAKHSTAN AND THE REPUBLIC OF KOREA ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

(Bulletin of International Treaties of the Republic of Kazakhstan, 2012, No. 6, Article 81 - entered into force on September 10, 2012)

The Republic of Kazakhstan and the Republic of Korea, hereinafter referred to as the "Parties", wishing to enhance the effectiveness of cooperation between both countries in the prevention, investigation, and prosecution of crimes through mutual legal assistance in criminal matters, have agreed as follows:

Article 1 Scope of application

1. The Parties, in accordance with the provisions of this Treaty, provide each other with legal assistance in criminal matters. 2. For the purposes of this Agreement, criminal proceedings mean the investigation, prosecution or other procedural actions related to any crime for which punishment is provided at the time of filing a request for legal assistance, if this falls within the jurisdiction of the competent authorities of the requesting Party. 3. Criminal cases also include cases related to violations of tax, customs, currency regulation, and other financial matters, but not related to civil litigation related to them. 4. Legal assistance includes: a) taking statements and statements from persons; b) providing information, documents, records, physical evidence; c) identification or items; d) handing over documents; e) executing requests for the search and confiscation of items; (f) The creation of conditions for persons to testify or assist in criminal investigations, charges or judicial proceedings in the Requested Party; (g) the detention, imposition of fines and confiscation of proceeds and funds from criminal activities; and (h) other assistance related to the purpose of this Treaty, which is not contrary to the legislation of the Requested Party. 5. The legal assistance provided under this Agreement does not include: (a) The extradition, arrest and detention of a person; (b) The execution of criminal sentences imposed in the Requesting Party, other than those provided for by the legislation of the Requested Party and this Treaty; (c) the transfer of persons in custody for the execution of sentences; or (d) the transfer of criminal cases.

Article 2 Legal assistance under other international agreements

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

Article 3 Central competent authorities

1. The Parties shall designate a person or body as the Central Competent Authority responsible for sending and accepting requests for the purposes of this Agreement. 2. The following persons or bodies are hereby designated by the central competent authorities in accordance with this Treaty: a) For the Republic of Korea, the central competent authority is the Ministry of Justice or an official appointed by the Minister; b) For the Republic of Kazakhstan, the central competent authority is the Prosecutor General's Office of the Republic of Kazakhstan. 3. Each Party shall notify the other Party of any changes in the name or functions of its central competent authority. 4. The central competent authorities usually communicate directly with each other or through diplomatic channels.

Article 4 Form of requests

1. Requests shall be sent in writing, except when the requested Party, in urgent cases, agrees to another form of request. If such a situation occurs, the request must be confirmed in writing within 20 days. 2. The request for legal assistance includes: a) an indication of the purpose of the request and the nature of legal assistance; b) the name of the agency or body that initiated the request; c) a description of the circumstances of the criminal case, indicating the facts relevant to the case, laws and penalties that may be applied; (d) An indication of the current status of the investigation or judicial proceedings; and (e) an indication of the time frame for the desired execution of the request. 3. Requests for legal assistance should also include, where possible,: a) identification data, nationality and location of the person who is the subject or has information related to the criminal case; (b) In the case of a request in accordance with Article 10 of this Treaty: (i) a list of issues on which persons should be interviewed, including, where possible, any questions that the Requesting Party would like to ask these persons; and (ii) a description of any documents, records or physical evidence specified in the request; and if necessary, a description of the relevant person; (c) In the case of a request for legal assistance in accordance with Articles 11 or 12 of this Treaty, information regarding permits and costs in the event of a person's arrival in the territory of the Requesting Party; (d) In the case of a request for legal assistance in accordance with Articles 15 or 16 of this Treaty, a description of the documents sought and their possible location; (e) In the case of a request for legal assistance in accordance with article 16 of this Treaty: (i) confirmation of the Requesting Party's grounds that proceeds of crime may fall under their jurisdiction; and (ii) a court decision, if any, on enforcement and an appropriate appeal regarding that decision; (f) in in the case of sending a request for legal assistance related to the search or discovery of proceeds of crime, an indication of the need to comply with the conditions in accordance with paragraph 4 of Article 16 of this Treaty; (g) A request for special requirements or procedures to be followed by the Requesting Party, including details of the procedure and form in which any information, testimony, documents or items should be provided; (h) A request, if any, regarding the confidentiality of the request, stating the reasons; (i) if an official the person of the Requesting Party intends to travel to the Requested Party, in connection with the request, information regarding the purpose of his visit, the expected dates of the visit and travel documents; j) any other supporting information, testimony or documents that are necessary for the execution of the request. 4. According to this Agreement, the request and all necessary documents must be sent in the language of the Requesting Party and accompanied by a translation into the language of the Requested Party or into English. 5. If the Requested Party considers that the information provided in the request is not sufficient to fulfill the request, it may request additional information in accordance with this Agreement.

Article 5 Refusal to provide assistance

1. Assistance may be refused if, in the opinion of the requested Party: a) the request relates to a crime that is of a political or military nature and is not an ordinary crime; b) the request relates to the criminal prosecution of a person for which he was convicted or acquitted in the Requested Party.; (c) There are substantial grounds to believe that the request for legal assistance is aimed at persecuting or punishing a person because of his religious, sexual, racial, national, or political affiliation, or that the execution of the request may harm the person for any of these reasons; (d) The request may cause serious damage to sovereignty, security, or public order or other essential interests of the State, including the safety of citizens of the Requested Party; (e) The request concerns an offence for which a person could no longer be prosecuted due to the expiration of the statute of limitations for criminal prosecution if the offence had been committed under the jurisdiction of the Requested Party; or (f) the request concerns the prosecution or punishment of a person for acts that would not constitute a crime if they were would have been committed under the jurisdiction of the Requested Party. 2. Legal assistance may be postponed by the Requested Party if additional investigation or judicial proceedings in the Requested Party are required upon request. 3. Until the refusal or postponement of assistance in accordance with this Article, the Requested Party, through its central competent authority: (a) Inform the Requesting Party as soon as possible of the reasons for the refusal or postponement; and (b) consult with the Requesting Party in order to determine the necessary conditions and time limits for the execution of the request. 4. If the Requesting Party agrees to execute the request subject to the conditions and time limits specified in paragraph 3 (b) of this Article, it must comply with these conditions.

Article 6 Execution of requests

1. Requests for legal assistance must be promptly executed by the central competent authorities of the Requested Party, in accordance with the legislation of the Requested Party, and as far as permitted by law, in the manner required by the Requesting Party. 2. The requested Party may postpone sending the requested material if the case is necessary for judicial proceedings in a criminal or civil case in that Party. In this case, the Requested Party may provide certified copies of the documents upon request. 3. The Requested Party must immediately inform the Requesting Party of the circumstances that have become known to the Requested Party and which significantly affect the time frame for the execution of the request.

Article 7 Return of materials to the Requested Party

At the request of the Requested Party, the requesting Party returns the materials, in accordance with this Agreement, if there is no further need to use them in a criminal case related to the request.

Article 8 Confidentiality and restrictions on the use of information

1. The requested Party, in the event of a request, must use all efforts to respect the confidentiality of the contents of the request and its materials, as well as any actions taken in accordance with the request. If the request cannot be fulfilled without violating confidentiality, the Requested Party must inform the Requesting Party about this before executing the request, and the Requesting Party determines the need to execute the request in such circumstances. 2. The requesting Party, in case of receiving a response to the request, should make every effort to respect the confidentiality of the information received from the Requested Party. 3. The requesting Party should use all efforts to prevent information leakage and its use without appropriate authorization. 4. The requesting Party must not use the information or evidence obtained for other purposes that are not specified in the request, without the prior consent of the Requested Party.

Article 9 Service of documents

1. The requested Party, within the framework of its legislation, executes requests for the service of documents related to the criminal case. 2. A request for the service of a summons, for the appearance of a person to the Requesting Party to give evidence must be submitted to the Requested Party within 45 days prior to the scheduled appearance. In urgent cases, the Requesting Party may not comply with this requirement. 3. The Requested Party must send the confirmation of the documents' delivery to the Requesting Party. In the event that the service cannot be performed, the Requesting Party must be notified accordingly and informed of the reasons. 4. A person who refuses to appear to give evidence is not subject to penalties or coercive measures, in accordance with the legislation of the Requesting or Requested Party.

Article 10 Obtaining witness statements, statements and evidence

1. The requested Party, within the framework of its legislation and on the basis of a request, must accept witness statements, or otherwise obtain statements from persons, or require them to provide evidence for transmission to the Requesting Party. 2. The requested Party, in accordance with its legislation, shall permit the presence of the persons indicated in the request for the duration of the execution of the request and may allow such persons to interrogate the person giving evidence. In case such direct questioning is not allowed, these persons are allowed to ask questions that will be put to the persons giving evidence. 3. A person whose testimony must be accepted by the Requested Party in accordance with this Article may refuse to give it if: a) the legislation of the Requested Party allows or requires that the person in question refuse to testify if a similar criminal case were being investigated in the Requested Party; (b) The legislation of the Requesting Party allows or requires that the person in question refuse to testify during a criminal investigation in the Requested Party. 4. If any person in the Requested Party claims the existence of a right or obligation to avoid giving evidence, according to the legislation of the Requesting Party, the central competent authority of the Requesting Party, upon request, submits confirmation to the central competent authority of the Requested Party regarding the existence of such a right. In the absence of other indications, such confirmation will be considered sufficient. 5. For the purposes of this Article, obtaining testimony includes attaching documents or other items.

Article 11 Transfer of a person in custody to give evidence

1. A person held in custody in the territory of the Requested Party may, at the request of the Requesting Party, be temporarily transferred to that Party to testify in a criminal case. For the purposes of this Article, a person in custody is also understood to mean a person who is not in prison, but who has been sentenced for committing a crime, and this sentence is not related to monetary penalties. 2. The requested Party must transfer the detained person to the Requesting Party only if: a) the person consents to such transfer; and (b) The Requesting Party agrees to comply with any conditions stipulated by the Requested Party regarding the detention or security of the person being transferred. 3. If the Requested Party informs the Requesting Party that it is no longer necessary to detain the transferred person, such person shall be released from custody. 4. A person who is transferred upon request in accordance with this Article must be returned to the Requested Party in accordance with the conditions agreed with the Requested Party as soon as possible after giving evidence or at an earlier time when the presence of this person is no longer necessary. 5. The time during which the person was detained in the Requesting Party is included in the total time of serving the sentence imposed by the Requested Party.

Article 12 The possibility of other persons to give evidence or assist in the investigation

1. The requesting Party may request the assistance of the Requested Party in inviting a person (other than the person to whom Article 11 of this Treaty applies) to testify or assist in the investigation of a criminal case. Such a person must be informed of all payments and expenses to be paid. 2. The requested Party must immediately inform the Requesting Party of the person's response.

Article 13 Ensuring security

1. If the person is located in the territory of the Requesting Party in accordance with a request under Articles 11 or 12 of this Treaty, during the period during which the person must remain in the Requesting Party for the purpose of the request: a) the person will not be detained, charged or punished in the Requesting Party for any offense or subjected to any civil judicial review in which the person would not have to participate if he were not in the Requesting Party in relation to any act, which preceded the departure of the person from the Requested Party; and (b) the person must not testify without his consent in any criminal proceedings or assist in any criminal investigation in other criminal matters unrelated to the request. 2. Paragraph 1 of this Article shall not apply if the person has not left the Requesting Party, although he had the opportunity to do so, within 15 days after that person was officially notified that his or her presence was no longer required or, having left, returned again. 3. A person who does not agree to testify in accordance with Articles 11 and 12 of this Treaty is not subject to penalties or coercive measures in the Requesting or Requested Party for these reasons. 4. A person who agrees to testify in accordance with Articles 11 and 12 of this Treaty shall not be subject to criminal prosecution on the basis of her or his testimony, except for perjury or contempt of court.

Article 14 Provision of information

1. The requested Party shall provide copies of documents and records that are publicly available. 2. The requested Party may, in accordance with its legislation, provide copies of any other documents or records, in the same manner and conditions as they are provided to its law enforcement and judicial authorities.

Article 15 Search and seizure

1. The requested Party shall, in accordance with its legislation, execute requests for legal assistance in criminal matters concerning the search, seizure and transfer of property to the Requesting Party. 2. The requested Party shall provide information concerning the results of the execution of the search request, the location and circumstances of the seizure and subsequent storage of the seized property. 3. The Requesting Party must comply with all conditions imposed by the Requested Party with respect to any confiscated property that has been sent to the Requesting Party.

Article 16 Proceeds of crime

1. Upon request, the requested Party will seek to determine, in accordance with its jurisdiction, whether there are any proceeds of crime and will notify the Requesting Party of the results of such an investigation. For the purposes of this Agreement, "proceeds of criminal activity" means any property that has been identified by a court or is suspected to have been obtained, directly or indirectly, as a result of a crime or used to commit it, and also includes property that is used to commit or facilitate the commission of a crime. 2. In the event of the discovery, in accordance with paragraph 1 of this Article, of proceeds of criminal activity, the Requested Party shall take measures, in accordance with its legislation, to seize or confiscate such proceeds. 3. When applying this article, the rights of bona fide third parties must be respected in accordance with the legislation of the Requested Party. 4. The requested Party must retain any proceeds of criminal activity that have been confiscated, unless otherwise agreed in individual cases.

Article 17 Certificates and authentication

1. With the exception of paragraph 2 of this article, a request for legal assistance, the attached documents, documents or materials submitted in response to the request shall not require any form of authentication. 2. In some cases, the Requested or Requesting Parties may request that documents or materials be duly certified in the manner provided for in paragraph 3 of this Article. 3. Documents or materials are certified for the purposes of this Agreement if: (a) They are intended to be signed or certified by a judge or other official of the Party sending the document; and (b) they are intended to be stamped with the official seal of the Party sending the document and signed by the Minister, Attorney General or Government official of the Party.

Article 18 Additional assistance

The central competent authorities of each Party may provide additional assistance to each other in accordance with the objectives of this Agreement and the legislation of both Parties.

Article 19 Representation and expenses

1. Unless otherwise stipulated in this Agreement, the Requested Party shall take all necessary measures to represent the Requesting Party at any criminal court hearings, in accordance with the request for assistance, and will otherwise represent the interests of the Requesting Party. 2. The requested Party shall bear the costs of executing the request for assistance, except that the Requesting Party shall: (a) The costs of transferring any person to or from the territory of the Requested Party, and the costs of accommodating the person and any other payment, daily subsistence allowance or other expenses paid to that person during his stay in the Requesting Party in accordance with the request provided for in Articles 9, 11 or 12 of this Treaty; (b) The costs, related to the transfer and protection of prisoners or the escort of officers; (c) The costs of paying for experts and related to the translation of documents; (d) At the request of the Requested Party, the exceptional costs incurred in fulfilling the request.

Article 20 Consultations

The Parties will consult on any request, regarding any problem regarding the interpretation, application or performance of this Agreement, or regarding individual cases.

Article 21 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 requests concerning acts and deeds 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 to the other Party. The Agreement shall terminate upon the expiration of six (6) months after receipt of such notification. In the event of notification of termination of this Agreement in accordance with this Article, any request for legal assistance received prior to termination shall be executed as if this Agreement had remained in force, unless the Requested Party itself withdraws the request.

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

The RCPI's note. The following are the texts of the Agreement in English and Korean.

President

Republic of Kazakhstan

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