On the ratification of the Agreement between the Republic of Kazakhstan and the Federal Republic of Brazil on Mutual Legal Assistance in Criminal Matters

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The Law of the Republic of Kazakhstan dated March 31, 2020 No. 310-VI SAM.

To ratify the Agreement between the Republic of Kazakhstan and the Federative Republic of Brazil on Mutual Legal Assistance in Criminal Matters, signed in Astana on June 20, 2018.

President of the Republic of Kazakhstan

K. TOKAEV

Unofficial translation

AGREEMENT between the Republic of Kazakhstan and the Federative Republic of Brazil on Mutual Legal Assistance in Criminal Matters

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

Considering the desire of the Parties to cooperate on the basis of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of December 20, 1988, the United Nations Convention against Transnational Organized Crime of November 15, 2000 and its Protocols, the United Nations Convention against Corruption of October 31, 2003 and other international treaties to which the Parties are parties,

Striving to improve efficiency in the investigation and prosecution of crimes, as well as the fight against crime,

Recognizing the particular importance of combating dangerous criminal activities, including corruption, money laundering and human trafficking, illicit drug trafficking, firearms, ammunition, explosives, terrorism and terrorist financing,

Also recognizing the importance of asset recovery as an effective tool in the fight against crime,

Paying due attention to human rights and the rule of law,

Taking into account the legal guarantees that ensure the accused person's right to a fair trial, including the right to be judged by an impartial tribunal established by law,

Desiring to conclude an agreement on mutual legal assistance in criminal matters,

We have agreed on the following:

Chapter I General provisions

Article 1 Scope of assistance

1. In accordance with the provisions of this Agreement, the Parties shall provide mutual legal assistance for the purposes of criminal proceedings, including any measures taken in connection with the investigation or prosecution of crimes, and interim measures such as restriction, seizure or confiscation, as well as the return of assets related to proceeds from crime., or the instruments of the crime.

2. Assistance includes:

a) delivery of documents;

b) obtaining witness statements or statements of persons;

d) Execution of search and seizure requests;

e) provision of documents, records and other evidentiary materials;

f) expert studies of persons, objects and places;

g) receiving and providing expert opinions;

(h) Location or identification of persons;

(i) Identification, tracing, interim measures, including restriction, seizure, confiscation and encumbrance on the use of proceeds and implements of crime, and assistance related to proceedings;

(j) Asset recovery;

k) Asset separation;

(l) Other assistance that may be agreed upon between the central authorities.

3. Assistance is provided regardless of whether the act that is the subject of the request is punishable under the laws of both Parties.

4. If a request is made for the search and seizure of evidence, restriction or confiscation of proceeds or instruments of crime, the Requested Party may, at its discretion, provide assistance in accordance with its domestic law.

5. For the purposes of this Agreement, the competent authorities authorized by the legislation of the Requesting Party to act in administrative or judicial proceedings concerning a crime may request legal assistance.

Article 2 Central authorities

1. The central authorities designated by both Parties are:

for the Republic of Kazakhstan - the Prosecutor General's Office;

For the Federal Republic of Brazil, it is the Ministry of Justice.

2. Requests and responses under this Agreement are sent directly through the central authorities.

3. For the purposes of this Agreement, the Parties may designate any other authority as the central authority at any time. Notification of such a determination is carried out through diplomatic channels.

4. For the purposes of this Agreement, the central authorities shall communicate directly with each other.

Article 3 Refusal of assistance

1. The central authority of the Requested Party may refuse assistance if:

a) the execution of the request may prejudice the sovereignty, public order or other essential interests of the Requested Party;

(b) The offence is considered to be of a political nature in accordance with the legislation of the Requested Party;

(c) There is reason to believe that the request was sent with the aim of persecuting a person on the basis of origin, social, official and property status, race, gender, religion, beliefs, language, nationality or ethnicity;

(d) The request has been prepared at the request of an emergency or ad hoc tribunal;

e) the request concerns a person who has already been prosecuted in the Requested Party for the same crime mentioned in the request for assistance;

(f) The request concerns an offence recognized by the Requested Party as a military offence, which is not an offence under ordinary criminal law.

2. The requested Party may delay the execution of the request if its execution would interfere with the ongoing criminal proceedings or harm the safety of any person on its territory.

3. Before refusing to execute a request or postponing its execution in accordance with this Article, the Requested Party has the right to consider the possibility of providing legal assistance under certain conditions. To this end, the central authorities of the Parties should consult with each other, and if the Requesting Party agrees, legal assistance is provided to it on the terms agreed upon by the Parties.

4. When the central authority of the Requested Party refuses or delays the provision of legal assistance, it shall notify the central authority of the Requesting Party of the reasons for such refusal or postponement.

Article 4 Preliminary measures

At the request of the Requesting Party, the competent authority of the Requested Party shall take preliminary measures to preserve the existing situation in order to protect the legitimate interests at risk or preserve evidence.

Article 5 Confidentiality and restrictions on use

1. Upon request, the requested Party shall keep confidential the fact of receipt of the request, its contents, the documents attached to it and any other documents and materials received during its execution. If the request cannot be executed without violating confidentiality, the Requested Party shall consult with the Requesting Party regarding its interest in executing the request.

2. The Requesting Party shall request the prior consent of the Requested Party to use or disclose information or evidence obtained through the provision of assistance for purposes not specified in the request.

3. Information or evidence obtained through assistance that has been disclosed in public, judicial or administrative hearings may be used for any purpose in the future. The requested Party may determine the possibility of using the information and evidence in another way.

4. The content of this article does not prevent the use or disclosure of information to the extent necessary in accordance with the legislation of the Requesting Party in criminal proceedings. The Requesting Party shall notify the Requested Party of any such disclosure.

Chapter II Requests for help

Article 6 Service of documents

1. The Requested Party shall make every effort to serve the documents sent by the Requesting Party in accordance with this Treaty. The provisions of this paragraph shall also apply to any summons or other proceedings requiring the presence of any person before a competent authority or court in the territory of the Requesting Party.

2. The central authority of the Requesting Party shall transmit any request for the service of documents requiring the appearance of a person before the competent authority in the territory of the Requesting Party no later than 90 (ninety) days. a day before the scheduled appearance date.

3. The requested Party shall send a confirmation of the delivery of the documents, if possible, in the manner specified in the request, to the extent permitted by applicable law.

Article 7 Obtaining testimony and evidence from the Requested Party

1. To the extent permitted by the applicable legislation of the Requested Party, the person from whom it is necessary to obtain evidence in the territory of the Requested Party may be forcibly summoned to testify or provide documents, records or physical evidence by means of subpoenas or other permitted methods in accordance with the legislation of the Requested Party.

2. Upon request, the central authority of the Requested Party shall inform in advance of the date and place of receipt of evidence in accordance with this article.

3. The requested Party may, in accordance with its legislation, allow the presence of officials of the Requesting Party specified in the request during its execution.

Article 8 Obtaining testimony from the Requesting Party

1. The requesting Party may request the appearance of a person in its territory to provide evidence or assistance in any proceedings.

2. A person who has not responded to a summons to appear shall not be subjected to any punishment or measure of restraint, even if the summons contains a warning of punishment, except in cases where he subsequently voluntarily arrives on the territory of the Requesting Party and is duly summoned again.

3. The Requested Party shall request the consent of the person for his voluntary appearance on the territory of the Requesting Party and immediately inform the Requesting Party of his response.

Article 9 Temporary transfer of persons in custody

1. The competent authorities of the Requested Party shall authorize the temporary transfer to the Requesting Party of a person in custody with the consent of that person.

2. For the purposes of this article:

(a) The requesting Party is responsible for the security of the transferred person and has obligations to detain the person.;

b) The requesting Party returns the transferred person to the Requested Party after completing the requested activities. The return is carried out no later than the date of his release from custody in the territory of the Requested Party.;

(c) The requesting Party does not request the Requested Party to initiate the extradition procedure for the transferred person while he is in its territory;

(d) The period of detention in the territory of the Requesting Party is counted against the period of deprivation of liberty to which the person has been subjected or will be required to be subjected in the territory of the Requested Party.

Article 10 Guarantee of inviolability

1. A person who is in the territory of the Requesting Party on the basis of a request for assistance:

(a) May not be subjected to detention, persecution, punishment or any other restrictions on personal freedom for any actions or omissions that preceded the arrival of that person in the territory of the Requesting Party;

(b) May not be compelled to testify or assist in any investigation or proceeding other than the one to which the request relates.

2. Paragraph 1 of this Article shall not apply if the person referred to therein:

a) having the opportunity to leave, has not left the territory of the Requesting Party within 15 (fifteen) days from the moment when he was officially notified that his presence was no longer required; or

b) voluntarily returned to the Requesting Party after departure.

3. A person may not be penalized or subjected to any other restrictions for refusing to appear in accordance with Article 8 of this Treaty or refusing to hand him over in accordance with Article 9 of this Treaty.

Article 11 Hearing by videoconference

1. The requesting Party may request a hearing by videoconference.

2. The requested Party may agree to a hearing by videoconference.

3. A request for a hearing by videoconference, in addition to the information specified in article 22 of this Treaty, must include the names of the competent authorities and other persons who will participate in the hearing.

4. The competent authority of the Requested Party shall summon a person who must be heard in accordance with its legislation.

5. The following rules apply to videoconference hearings:

(a) The hearing is conducted in the presence of the competent authority of the Requested Party, which, if necessary, uses the services of an interpreter. This body is responsible for identifying the person being heard and for properly following the legal procedure. If the competent authority of the Requested Party decides that due process is not being followed during the hearing, it shall take the necessary measures to ensure the proper continuation of the hearing.;

(b) The hearing shall be conducted by or under the direction of the competent authority of the Requesting Party in accordance with its legislation.;

(c) At the request of the Requesting Party or the person being heard, the Requested Party shall provide that person with an interpreter.;

(d) The person being heard may exercise the right to remain silent if such right is recognized by the legislation of the Requested or Requesting Parties.

6. After the end of the hearing, the competent authority of the Requested Party shall prepare a report containing:

a) the date and place of the hearing, with the signatures of the persons who participated in the hearing;

b) information about the identity of the person who was heard;

(d) A commitment or a given oath; and

f) the technical conditions under which the hearing took place.

7. The report provided for in paragraph 6 of this Article shall be transmitted by the central authority of the Requested Party to the central authority of the Requesting Party.

8. The requested Party shall take measures appropriate to its legislation, which should be applied in the same manner as if it were a national proceeding, when witnesses and experts would be heard on its territory, including:

(a) The person's refusal to give evidence if he is required to do so; or

b) giving false testimony.

9. The parties may apply the provisions of this article for hearing by videoconference, which is attended by the accused or the person against whom the criminal case is being investigated. In this case, the Parties consult with each other and decide whether to hold a videoconference in accordance with their laws and relevant applicable international treaties. Hearings attended by the accused or the person against whom the criminal case is being investigated may be conducted only with their consent.

Article 12 Search and seizure

1. The requested Party, in accordance with its legislation, shall execute a request for the search, seizure and transfer of any items to the Requesting Party, if the request includes justification for taking such measures.

2. The parties may request a document confirming the sequence of ownership, the authenticity of the item and the integrity of its condition.

3. The Requested Party may require the consent of the Requesting Party to the terms and conditions that the Requested Party considers necessary to protect the interests of a third party in good faith with respect to the transferred item.

Article 13 Official documents

1. The Requested Party shall provide the Requesting Party with copies of publicly available documents, including documents or information in any form in the possession of the authorities in the Requested Party.

2. The Requested Party may, at its discretion, provide copies of any documents, including documents or information in any form, in the possession of the authorities of the Requested Party, but which are not publicly available, to the same extent and under the same conditions as copies are available to its law enforcement and judicial authorities.

Article 14 Return of documents and items

The central authority of the Requesting Party shall return any documents or items provided during the execution of the request in accordance with Chapter II of this Treaty as soon as possible, except in cases where the central authority of the Requested Party refuses to return the documents or items.

Article 15 Assistance in confiscation procedures

1. The Parties shall assist each other in procedures involving identification, tracing, and preliminary measures such as restriction, seizure, and confiscation of proceeds and implements of crime.

2. If the central authority of one of the Parties has become aware that the proceeds or instruments of crime are located on the territory of the other Party and may be subject to preliminary measures such as restriction, seizure or confiscation in accordance with the legislation of that Party, it may inform the central authority of the other Party.

3. If a Party has received such notification, it may forward this information to its competent authorities in order to decide whether to take appropriate action. The said competent authorities make a decision in accordance with the legislation of their State, and the central authority of that State must ensure that the other Party is notified of the actions taken.

Chapter III Distribution of confiscated assets or their cash equivalents

Article 16 Asset recovery

1. If a verdict has been passed in the territory of the Requesting Party with respect to assets that have been seized by the Requested Party, such assets may be returned to the Requesting Party for confiscation purposes in accordance with the legislation of the Requested Party.

2. The rights to these assets claimed by bona fide third parties or victims should be taken into account.

Article 17 Return of embezzled public funds

1. In the case of seizure or confiscation by the Requested Party of assets constituting public funds, regardless of whether they have been legalized or not, and which have been appropriated by the Requesting Party, the Requested Party shall return the seized or confiscated assets to the Requesting Party minus the costs of their sale.

2. The return is usually based on a final court decision of the Requesting Party; however, the Requested Party may return the assets before the completion of the proceedings in accordance with its legislation.

Article 18 Requests for division of assets

1. A Party may request the division of assets by the Party that holds the seized assets in accordance with the provisions of this Agreement.

2. The Requested Party may, by mutual agreement and in accordance with its legislation, share these assets with the Requesting Party. The asset allocation request must be submitted within

1 (one) year from the date of entry into force of the final decision on confiscation, unless otherwise agreed between the Parties in exceptional cases.

3. The requested Party upon receipt of a request for the division of assets prepared in accordance with the provisions of this article:

(a) Considers the division of assets as set out in this article; and

(b) Inform the Requesting Party of the results of the review.

4. In cases where there are bona fide third parties or victims, consideration of the rights of bona fide third parties or victims takes precedence over the division of assets between the Parties.

Article 19 Asset allocation

1. If the Requested Party offers to share assets with the Requesting Party, it:

(a) Determine, by mutual agreement and in accordance with its legislation, the shares of assets to be divided; and

b) transfers funds equivalent to this share to the Requesting Party in accordance with article 20 of this Treaty.

2. When the value of assets is insignificant, their separation is not performed. In exceptional cases, the Parties may agree otherwise.

Article 20 Payment of divided assets

1. Unless otherwise mutually agreed between the Parties, any funds transferred in accordance with subparagraph (b) of paragraph 1 of Article 19 of this Agreement shall be paid:

(a) In the currency of the Requested Party; and

b) by electronic money transfer or check.

2. Payment of any such funds shall be made:

(a) To an appropriate institution or to a bank account designated by the central authority of the Requesting Party; or

(b) To another recipient or recipients, who may in individual cases be designated by the Requesting Party, and the Requested Party shall be notified thereof.

Article 21 Setting conditions

Unless otherwise agreed between the Parties, the Requested Party may not impose on the Requesting Party any conditions regarding the use of funds transferred in accordance with subparagraph (b) of paragraph 1 of Article 19 of this Agreement. In particular, it may not require the Requesting Party to share these funds with any other State, organization or person.

Chapter IV Procedures

Article 22 Form and content of requests

1. A request for assistance shall be made in writing and may be transmitted by the central authorities to each other via electronic communication. When the Requested Party requires the original to be sent, it is provided within 30 (thirty) days.

2. The request must include the following:

(a) The name and address of the competent authority conducting the proceedings to which the request relates;

(b) A description of the subject matter of the case and the nature of the substance of the investigation, prosecution or other proceedings, including the provisions of the laws applicable to the case to which the request relates;

c) a summary of the information that is the basis for the request;

(d) A description of the evidence or other assistance requested; and

e) the purpose for which evidence is requested or other assistance.

3. If necessary and possible, the request should also include:

a) information about the identity, date of birth and place of residence of the person from whom proof is required;

b) information about the identity, date of birth and place of residence of the person to whom the documents are required to be served, the person's attitude to the proceedings and the procedure according to which the service is required.;

(d) An accurate description of the place of the search and the items to be seized;

e) a description of the procedure for receiving and recording any testimony or statements;

(f) A list of questions to be asked of the witness or expert;

g) a description of any special procedures to be followed in executing the request;

(h) Information on payments and compensations to which a person summoned to the territory of the Requesting Party is entitled;

(i) Any other information that may be brought to the attention of the Requested Party to facilitate the execution of the request; and

j) any confidentiality requirements.

4. The Requested Party may request from the Requesting Party any additional information that is necessary for the Requested Party in order to fulfill the request.

Article 23 Language

1. Requests for assistance and any accompanying documents shall be sent in the language of the Requesting Party and accompanied by a translation into the official language of the Requested Party, unless otherwise agreed.

2. The central authorities of each of the Parties shall interact with each other in English, including for the purposes provided for in paragraph 9 of Article 24 of this Treaty.

3. The requested Party is not obliged to provide a translation of the documents to the Requesting Party as a result of the execution of the request.

Article 24 Execution of requests

1. The central authority of the Requested Party shall immediately execute the request or, if necessary, transmit it to the competent authorities. The competent authorities of the Requested Party shall do their best to comply with the request. The courts of the Requested Party are authorized to issue subpoenas, search warrants or other decisions necessary for the execution of the request.

2. Requests for assistance shall be executed in accordance with the legislation of the Requested Party, unless otherwise provided by this Agreement.

3. The Requested Party shall comply with the formalities and procedures specified by the Requesting Party, unless otherwise provided by this Treaty, provided that such formalities and procedures do not contradict the legislation of the Requested Party.

4. The central authority of the Requested Party may facilitate the participation in the execution of the request of officials of the Requesting Party specified in the request.

5. The central authority of the Requested Party may request from the central authority of the Requesting Party the provision of information in such form as may be necessary to ensure the possibility of executing the request.

6. The central authority of the Requested Party may take any measures that may be necessary under the legislation of the Requested Party to fulfill the request received from the Requesting Party.

7. The central authority of the Requested Party, at the request of the central authority of the Requesting Party, shall provide any information regarding the procedure for executing the request.

8. The central authority of the Requested Party shall immediately inform the central authority of the Requesting Party of any circumstances that impede the execution of the request or require a change in the requested action.

9. The central authority of the Requested Party shall immediately inform the central authority of the Requesting Party of the results of the execution of the request.

Article 25 Voluntary exchange of information

1. The central authority of one of the Parties may, without prior request, send information to the central authority of the other Party when it considers that disclosure of such information may assist the receiving Party in initiating or conducting an investigation or judicial proceeding, or may be a reason for sending a request by the other Party in accordance with this Agreement.

2. The transmitting Party, in accordance with its legislation, may determine the conditions for the use of such information by the receiving Party. The receiving Party must comply with these conditions.

Article 26 Certification and certification

Requests for assistance and documents submitted in accordance with Article 2 of this Treaty do not require any legalization, certification or authentication and are fully acceptable as evidence to the Requesting Party.

Article 27 Expenses

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

2. The requested Party shall bear all costs related to the execution of the request, with the exception of the following:

a) fees for expert services, expenses and payments related to the travel of persons in accordance with paragraph 3 of Article 7 and Article 8 of this Treaty;

(b) The costs of setting up and maintaining a videoconference or television connection and of making a translation during such procedures;

Such fees, payments and expenses are paid by the Requesting Party, including for translation, copying and translation services, if requested.

3. If the central authority of the Requested Party notifies the central authority of the Requesting Party that the execution of the request may require additional costs, the central authorities shall consult in order to reach an agreement on the conditions under which the request is executed and on the method of cost allocation.

Chapter V Final provisions

Article 28 Compatibility with other international treaties

The assistance and procedures set out in this Agreement shall not prevent either Party from providing assistance to the other Party on the basis of the provisions of other international treaties or on the basis of the provisions of its legislation. The Parties may also provide assistance in accordance with any agreement, international treaty or practice that may be applicable in relations between the competent authorities of the Parties.

Article 29 Consultations and dispute resolution

1. The central authorities of the Parties, at the request of one of the Parties, shall consult on the implementation of this Agreement on general issues or on specific cases. The central authorities may also agree on the necessary practical measures that may be necessary to facilitate the implementation of this Treaty.

2. Disagreements arising between the Parties regarding the interpretation or application of the provisions of this Agreement shall be resolved through negotiations between the Parties.

Article 30 Entry into force, amendments and additions, termination

1. This Agreement shall enter into force upon the expiration of 30 (thirty) days from the date of receipt by the Parties through diplomatic channels of the last written notification on their completion of the internal procedures necessary for its entry into force.

2. This Agreement is concluded for an indefinite period. Its validity may be terminated after 6 (six) months from the date of receipt by one of the Parties through diplomatic channels of a written notification of its intention to terminate it.

3. By mutual agreement of the Parties, amendments and additions may be made to this Agreement, which are an integral part of it, formalized in separate protocols, and enter into force in accordance with the procedure provided for in paragraph 1 of this article.

4. Any procedures initiated by the Parties prior to the termination of this Agreement shall be carried out until their full completion.

5. Requests sent in accordance with this Treaty may be applied to crimes committed before its entry into force.

Done in Astana on June 20, 2018, in two originals, each in the Kazakh, Portuguese and English languages, all texts being authentic.

In case of disagreement in the texts of this Agreement, the Parties shall refer to the English text.

For the Republic of Kazakhstan

For the Federal Republic of Brazil

2018 zhylgy 20 mausymda Astana kalasynda kazakhstan, Portugal zhane agylshyn tilderinde kol koylgan Kazakhstan Republikasi men Brazil Federativtik Republikasi arasyndagi kylmystyk ister boyynsha ozara kuktyk komek turaly shart matinin orys tilindegi mating dalme-daldigin rastaymyn.

I confirm the authenticity of the text of the Agreement between the Republic of Kazakhstan and the Federative Republic of Brazil on Mutual Legal Assistance in Criminal Matters, signed in Astana on June 20, 2018 in Kazakh, Portuguese and English with the text in Russian.

Head of the Department of International Cooperation Prosecutor General's Office of the Republic of Kazakhstan

G. Koigeldiev

President

Republic of Kazakhstan

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