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

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The Law of the Republic of Kazakhstan dated September 21, 2015 No. 349-V SAM

To ratify The Agreement between the Republic of Kazakhstan and the Italian Republic on Mutual Legal Assistance in Criminal Matters, signed in Astana on January 22, 2015.

President of the Republic of Kazakhstan N. NAZARBAYEV

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

The Republic of Kazakhstan and the Italian Republic, hereinafter referred to as the "Parties", wishing to promote effective cooperation between the two countries in the fight against crime, based on mutual respect for sovereignty, equality and mutual benefit, bearing in mind that this goal can be achieved through the conclusion of an international bilateral agreement establishing the procedure for providing legal assistance in criminal matters, have agreed on the following:

Article 1 Scope of application

1. In accordance with the provisions of this Agreement, the Parties undertake to provide each other with mutual legal assistance in criminal matters upon request. 2. Such legal assistance includes: (a) determining the location and identification of the person; (b) handing over documents and materials related to the criminal proceedings; (c) summoning witnesses, victims and experts to appear voluntarily before the competent authority of the Requesting Party; (d) receiving and providing documents, materials and items of evidentiary value; (e) conducting interrogations and receiving statements from persons; (f) temporarily transferring persons in custody to obtain their testimony or participate in other legal proceedings; (g) conducting forensic examinations, examining the area, documents or objects; (h) conducting searches, seizing evidence, seizing and confiscating assets, related to criminal activities; (i) exchange of information on national legislation; (j) information on sentences and court records; (k) obtaining any other legal assistance other than that provided for in paragraph 3 of this Article, which is not contrary to the national legislation of the Requested Party. 3. This Agreement does not apply to: (a) the enforcement of arrest warrants and other measures restricting a person's personal freedom; (b) the extradition of persons; (c) the enforcement of court decisions, with the exception of the provisions of this Treaty relating to the confiscation of assets; (d) the transfer of convicted persons for the purpose of serving their sentences; and (e) the transfer of criminal proceedings.

Article 2 Dual jurisdiction

1. Legal assistance may be provided if the act in respect of which it is requested does not constitute a crime in the Requested Party. 2. If the request for legal assistance relates to searches, seizures, seizure and confiscation of assets and other activities affecting the fundamental rights of a person, or related to the invasion of places or premises and the seizure of objects, legal assistance is provided if the act for which it is requested is also recognized as a crime under the national legislation of the Requested Party.

Article 3 Refusal or postponement of legal assistance

1. The requested Party may refuse to provide the requested legal assistance in whole or in part if: (a) the execution of the request is contrary to its national legislation or the provisions of this Treaty; (b) the offence for which the request is made is punishable in the Requesting Party by a type of punishment prohibited by the national legislation of the Requested Party; (c) the offence for which the request is made is a political offence or an offence related to of this category. At the same time, political crimes are not: 1) murder or other crimes against the life, health or freedom of the Head of State or Government and members of their families; 2) terrorism, as well as other crimes that are not political in accordance with other international treaties, conventions or agreements to which both Parties are parties; (d) the request for assistance refers to military a crime that is not a crime under the ordinary criminal law applicable in general; (e) there are substantial grounds to believe that the request for assistance is aimed at criminalizing, punishing, or facilitating other types of actions against a person on the grounds of his religion, gender, race, nationality, or political beliefs, or that the position of that person may be harmed for any of these reasons; (f) in the Requested Party criminal proceedings have already been initiated or a final court decision has been issued against the same person for the crime specified in the request.; (g) the execution of the request poses a threat to the sovereignty, security, public order or other essential interests of the Requested Party, or may lead to conflicts with the fundamental principles of its national legislation. 2. The requested Party may delay the execution of the request if its execution serves as an obstacle to the criminal proceedings being conducted in the Requested Party. 3. Before refusing to execute a request or postponing its execution, 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, designated in accordance with Article 4 of this Treaty, shall consult with each other, and if the Requesting Party agrees, legal assistance shall be provided to it in an agreed manner under certain conditions. 4. When the Requested Party refuses or delays the provision of legal assistance, it shall notify the Requesting Party in writing of the reasons for such refusal or postponement.

Article 4 Central authorities

1. For the purposes of this Agreement, the Parties shall determine the Central Authorities responsible for its implementation.: (a) for the Republic of Kazakhstan, the Central Authority is the Prosecutor General's Office of the Republic of Kazakhstan; (b) for the Italian Republic, the Central Authority is the Ministry of Justice of the Italian Republic. 2. In the event of a change in the Central Authority, the Parties notify each other through diplomatic channels. 3. When implementing this Agreement, the Central Authorities interact directly with each other.

Article 5 Form and content of requests

1. The request shall be drawn up in writing, signed by an authorized person and stamped by the competent authority of the Requesting Party. 2. The request must include the following: (a) the name of the competent authority conducting the investigation; (b) a description of the facts of the crime, indicating the time and place of its commission and the harm caused, if any.; (c) an indication of the applicable provisions of national legislation, including provisions on the statute of limitations for criminal liability and an extract from criminal legislation providing for liability for the crime for which legal assistance is requested; (d) a description of the requested measures; (e) in cases of reasonable urgency, an indication of the time period during which the request is expected to be executed; (f) an indication of the persons whose presence is required during the execution of the request, in accordance with paragraph 3 of Article 6 of this Agreement; (g) information on payments and compensation for expenses to which a person summoned to appear in the territory of the Requesting Party is entitled in accordance with Article 10 of this Treaty; (h) information necessary to obtain testimony via videoconference, as provided for in paragraph 5 of Article 12 of this Treaty. 3. The request, as required, also includes the following: (a) information about the persons under investigation; (b) information about the person who is to be identified or located; (c) information about the identity and place of residence of the person to whom the documents are to be served, as well as the manner in which they are to be served; (d) information about the identity and place of residence of the person who is to testify or make a statement; (e) location and description of the place or object to be served (f) the location and description of the place to be searched and the items to be seized, seized or confiscated; (g) an indication of any special procedure required for the execution of the request and the relevant justifications for it; (h) the degree of confidentiality to be respected and the corresponding justification; (i) any other information that may facilitate the execution of the request. 4. If the Requested Party considers that the information contained in the request is insufficient for its execution, it may request additional information. 5. The request and supporting documents submitted in accordance with this Article shall be drawn up in the language of the Requesting Party and accompanied by an English translation. 6. A request sent through the Central Authorities defined in Article 4 of this Treaty may be sent in advance by any expeditious means of transmitting information, including telex, fax and electronic message. In such cases, the written request must be received within the next thirty calendar days, otherwise it will be canceled.

Article 6 Execution of the request

1. The requested Party shall carry out the immediate execution of the request in accordance with its national legislation. For this purpose, the competent authority of the Requested Party issues summonses for the appearance of the summoned persons, decisions on search, seizure, arrest or confiscation, or any other measure necessary for the execution of the request. 2. The Requested Party shall execute the request in accordance with the procedure established by the Requesting Party, if this does not contradict the national legislation of the Requested Party. 3. The requested Party may allow the authorized persons specified in the request to be present during its execution, if this does not contradict the national legislation of the Parties. For this purpose, the Requested Party shall immediately inform the Requesting Party of the date and place of execution of the request. 4. The requested Party shall immediately inform the Requesting Party of the results of the execution of the request. 5. If the person against whom the request is to be executed, prior to its execution, invokes immunity, the right to privileges or incapacity in accordance with the national legislation of the Requested Party, its competent authority shall make an appropriate decision, which shall be communicated to the Requesting Party for appropriate action. 6. The documents sent as execution of the request shall be drawn up in the language of the Requested Party and accompanied by an English translation, as well as stamped by the competent authority of the Requested Party that executed the request.

Article 7 Search for persons

In accordance with the provisions of this Treaty, the Requested Party shall do everything possible to locate the persons indicated in the request and presumably located on its territory, and inform the Requesting Party of the results.

Article 8 Summoning to the competent authority and handing over the documents

1. The Requested Party shall deliver the notification of the summons to the competent authority of the Requesting Party and other documents sent by the Requesting Party in accordance with its national legislation. 2. After delivery, the requested Party shall send to the Requesting Party a confirmation of delivery with the signature of the authorized person or the seal of the authority that carried out the delivery, indicating the date, time, place and method of delivery, as well as information about the person to whom the documents were delivered. If delivery has not been made, the Requested Party shall immediately notify the Requesting Party and inform it of the reasons for non-delivery. 3. A request for the delivery of notices of attendance to the competent authority shall be sent to the Requested Party before the expiration of the period established by paragraph 2 of Article 10 of this Treaty. 4. Notifications of summons to the competent authority of the Requesting Party and the documents served should not be accompanied by any threat of coercive measures in case of failure to appear.

Article 9 Obtaining testimony from the Requested Party

1. The requested Party, in accordance with its national legislation, shall obtain testimony from witnesses, victims, persons under investigation or arrest in the Requested Party, experts or other persons, as well as receive materials, documents and any other testimony specified in the request and transmit them to the Requesting Party. 2. The requested Party shall immediately notify the Requesting Party of the date, place and time of the measures to obtain testimony from the persons referred to in paragraph 1 of this Article, including for the purposes provided for in paragraph 3 of Article 6 of this Treaty. If necessary, the Central Authorities of the Parties shall consult with each other to establish a date suitable for both Parties. 3. A person called to give evidence has the right to refuse to give evidence if the national legislation of the Requested Party or the Requesting Party allows this. To this end, the Requesting Party mentions this in the request. 4. The requested Party shall permit the presence of a lawyer for the person called to testify whenever this is provided for by the national legislation of the Requesting Party and does not contradict the national legislation of the Requested Party. 5. Documents, objects and other evidence indicated by the person called to file statements or give testimony, discovered as a result of such statements and testimony, are acceptable as evidence to the Requesting Party in accordance with the legislation of the Requesting Party.

Article 10 Obtaining testimony from the Requesting Party

1. Upon request, the Requested Party shall summon a person to appear before the competent authority of the Requesting Party for the purpose of questioning, receiving statements or for hearing as an expert or for performing other procedural actions. The requested Party shall immediately notify the Requesting Party of the possibility of the said person's appearance. 2. The Requesting Party shall transmit to the Requested Party a request for delivery of a notice of summons to appear before the competent authority located in the territory of the Requesting Party no later than sixty days before the day set for appearance, except in urgent cases when the Requested Party has agreed a shorter period. 3. The Requesting Party shall indicate in the request the amount of payments and compensation for expenses to which the person summoned to appear on the territory of the Requesting Party to testify is entitled.

Article 11 Guarantees and special rule

1. A person located in the territory of the Requesting Party in accordance with Article 10 of this Treaty: (a) may not be investigated or prosecuted, convicted or subjected to any other measure restricting his personal freedom by the Requesting Party for crimes committed prior to entry into the territory of the Requesting Party.; (b) is not required to give evidence or make other statements, or to participate in any activities other than those specified in the request for assistance, unless the Requested Party and the person concerned give their consent to this. 2. Paragraph 1 of this article shall cease to have effect if the person referred to therein: (a) does not leave the territory of the Requesting Party within thirty days from the moment when he was officially notified that his presence is no longer necessary. This period does not include the period during which the above-mentioned person has not left the territory of the Requesting Party for reasons beyond his control; (b) after leaving the territory of the Requesting Party, he voluntarily returns back. 3. A person who has received a notification of a summons to the competent authority and has failed to appear or refused to make a statement, give evidence or take part in other activities provided for in Articles 9 or 10 of this Treaty, shall not be forcibly escorted to the competent authority of the Requesting Party as a result of his non-appearance or refusal. In such cases, upon request, other measures provided for by the national legislation of the Requested Party may be applied. 4. The victim, witness or expert, who is interrogated in accordance with the procedure provided for in Articles 9 and 10 of this Treaty, is responsible for the content of the testimony, expert opinion given during the appearance before the competent authority, in accordance with the national legislation of the Parties, while maintaining the jurisdiction of each Party in respect of the offense committed by them.

Article 12 Conducting events via videoconference

1. If a person located in the territory of the Requested Party is to be questioned as a witness, victim, suspect, accused or expert by the competent authorities of the Requesting Party, the latter may request that the interrogation take place via videoconference in accordance with the provisions of this article, if the voluntary appearance of the person on its territory is impossible. 2. Video-conference interrogation may also be requested in relation to a person under investigation or for criminal prosecution, if he agrees to such interrogation and if this does not contradict the national legislation of each of the Parties. In such a case, the lawyer of the person who appeared must be given permission to be present at the location of the above-mentioned person in the Requested Party or before the competent authority of the Requesting Party, allowing the lawyer to communicate confidentially at a distance with the person whose interests he is defending. 3. Interrogation by videoconference should always be carried out if the person to be questioned is being held in custody in the territory of the Requested Party. 4. The requested Party shall grant permission to conduct procedural actions via videoconference, provided that it has the technical means to carry it out. 5. Requests for procedural actions via videoconference, in addition to what is provided for in Article 5 of this Treaty, indicate the reasons why it is not possible for a person who is not in custody and with whose participation the procedural actions are to be conducted, to be present in person on the territory of the Requesting Party, and also indicate the competent authority and persons who will receive testimony. 6. The competent authority of the Requested Party shall summon a person to appear in accordance with the national legislation of its Party. 7. The following provisions apply to the conduct of procedural actions via videoconference: (a) the competent authorities of both Parties are present during the taking of the testimony and, if necessary, assist in the translation. The competent authority of the Requested Party shall establish the identity of the person who has appeared and make sure that this event is conducted in accordance with the national legislation of its Party. If the competent authority of the Requested Party finds that the fundamental principles of its national legislation are not being respected during the course of receiving testimony, it will immediately take any necessary measure to carry out the event in accordance with these principles; (b) the competent authorities of both Parties jointly coordinate measures to protect the person called, if necessary; (c) the person who A person summoned for questioning has the right to refuse to give evidence if the national legislation of the Requested Party or the Requesting Party allows this.; (d) The Requested Party shall provide the person summoned for questioning with the assistance of an interpreter, if necessary. 8. Upon completion of the procedural action, the competent authority of the Requested Party shall draw up an official act indicating the date and place of the hearing, information on the identity of the person who appeared, information on the identities of other persons participating in the event and in whose capacity they appeared, as well as the technical conditions under which the testimony or other procedural actions were obtained. The original of the above-mentioned act is immediately sent to the competent authority of the Requesting Party. 9. Expenses incurred by the Requested Party as a result of the videoconference shall be reimbursed by the Requesting Party, except in cases where the Requested Party does not require their reimbursement in full or in part. 10. The requested Party has the right to authorize the use of videoconference technologies also for purposes other than those specified in paragraphs 1 and 2 of this article, including such use for the purpose of identifying persons and objects or conducting confrontations.

Article 13 Temporary transfer of persons in custody

1. If it is impossible to hold a videoconference on the grounds provided for in paragraph 4 of Article 12 of this Treaty, the Requested Party may, at the request of the Requesting Party, temporarily transfer the person in custody to the Requesting Party in order to enable him to appear before the competent authority for questioning, filing applications or participating in other procedural actions, provided that the above-mentioned person agrees to this and the Parties had previously reached a written agreement on the transfer and its terms. 2. The temporary transfer of a person may be carried out provided that: (a) this does not prevent an investigation or criminal prosecution being conducted against the designated person in the Requested Party; (b) the transferred person will be detained in the Requesting Party. 3. The time spent in custody in the territory of the Requesting Party is counted towards the time of execution of the sentence imposed in the Requested Party. 4. In cases where the transit of a detained person through the territory of a third State is necessary for the temporary transfer, the Requesting Party shall send a transit request to the competent authority of the third State and notify the Requested Party in advance of the outcome of the consideration of the above-mentioned request, sending the relevant documentation. 5. The requesting Party shall immediately return the transferred person to the Requested Party at the end of the activities specified in paragraph 1 of this Article or at the end of any other period agreed upon by the Parties. 6. The person temporarily transferred in accordance with this article shall be provided, where applicable, with the guarantees specified in Article 11 of this Agreement. 7. The requested Party may refuse a temporary transfer if there are substantial grounds about which it is obliged to inform the Requesting Party.

Article 14 Protection of victims, witnesses and other persons involved in criminal proceedings

When necessary or in order to ensure an objective investigation and the correct administration of justice, both Parties shall take measures provided for in their national legislation to protect victims, witnesses and other persons involved in criminal proceedings in relation to crimes and requested legal assistance measures.

Article 15 Provision of official or publicly available documents

1. Upon request, the Requested Party shall provide the Requesting Party with copies of materials or documents available to the public from government agencies or public organizations. 2. The requested Party has the right to provide copies of materials or documents not accessible to the public from government agencies or public organizations to the extent and under the conditions to which these copies are available to judicial or law enforcement authorities of the Requested Party. Such copies must be certified by the competent authority of the Requested Party. The requested Party has the right to reject the above-mentioned request in whole or in part, informing about the reasons for such a decision.

Article 16 Provision of documents, materials or objects

1. When a request concerns the transfer of documents or materials not specified in Article 15 of this Treaty, the Requested Party may transfer copies thereof. Meanwhile, in each case, when the Requesting Party expresses a request for the transfer of originals, the Requested Party executes the request as far as possible. 2. The original documents and materials, as well as the items transferred to the Requesting Party, are returned to the Requested Party in each case as soon as possible.

Article 17 Searches, seizures, arrests and confiscation

1. Upon request, the requested Party shall carry out measures on its territory to identify proceeds of crime or items related to the crime, and shall inform the Requesting Party of the results. In the request, the Requesting Party shall inform the Requested Party of the grounds for the possible presence in the latter's territory of any proceeds of crime or items related to the crime. 2. Upon the discovery of proceeds of crime or items related to a crime, the Requested Party, upon the request of the Requesting Party, shall take any measures provided for by its national legislation with a view to seizing, seizing and confiscating proceeds of crime or items related to a crime. 3. Upon request, the Requested Party shall transfer in whole or in part any proceeds of crime and items related to the crime, as well as any financial resources received from their sale, in accordance with the terms agreed between the Parties. 4. In applying this article, any rights of the Requested Party or third parties with respect to the aforementioned proceeds of crime or items related to the crime shall be respected.

Article 18 Establishment of the bank and financial information

1. Upon request, the Requested Party shall immediately determine whether the natural or legal person suspected or accused of committing a crime is the holder of a bank account or accounts with any bank located in its territory, and provide the Requesting Party with relevant information, including information about persons authorized to use such accounts, the location of the latter, and any transactions related to them. 2. The measures referred to in paragraph 1 of this article may also apply to financial institutions other than banks. 3. The provision of legal assistance specified in this article may not be refused on the basis of bank secrecy.

Article 19 Compatibility with other international treaties

1. The provisions of this Treaty shall not affect the rights and obligations of each of the Parties arising for it from other international treaties to which it is a party. 2. This Agreement does not prevent the Parties from carrying out other forms of cooperation with each other on the provision of legal assistance in criminal matters on the basis of agreements, if they comply with the national legislation of the Parties.

Article 20 Exchange of information on criminal proceedings

Upon request and for the purposes of criminal proceedings, the Requested Party shall transmit to the Requesting Party information on criminal proceedings, previous convictions and sentences imposed against citizens of the Requesting Party.

Article 21 Exchange of information on legislation

Upon request, the Parties shall exchange information on current or previous national legislation and on judicial practice used by the Parties.

Article 22 Transfer of court decisions and certificates of criminal prosecution

1. When transmitting a court decision on a criminal case, the Requested Party also provides information about the relevant court proceedings, if the Requesting Party requests it. 2. Criminal record certificates required by the competent authority of the Requesting Party for the purposes of criminal proceedings shall be issued if, under the same circumstances, they could have been issued to the competent authorities of the Requested Party.

Article 23 Exemption from legalization and legal force of documents and materials

The documents and materials submitted in accordance with this Agreement do not require any legalization, certification or authentication and are fully acceptable as evidence to the Requesting Party.

Article 24 Confidentiality

1. At the request of the Requesting Party, the Requested Party shall maintain confidentiality regarding the fact of receipt of the request, its contents, the documents attached to it, and any documents and materials received during its execution. If the request cannot be executed without violating confidentiality, the Requested Party notifies the Requesting Party, which decides on the possibility of executing the request. 2. Upon the relevant request of the Requested Party, the Requesting Party shall maintain confidentiality with respect to any evidence and information obtained during the execution of the request for legal assistance, except in cases where evidence and information are used in the investigation and judicial proceedings of criminal cases.

Article 25 Expenses

1. The costs associated with the implementation of this Agreement shall be borne by the Parties in accordance with their national legislation. 2. The requested Party shall bear the costs associated with the execution of the request. In doing so, the Requesting Party shall bear the following costs: (a) the costs of travel and stay in the Requested Party of the persons referred to in paragraph 3 of Article 6 of this Treaty; (b) the costs of travel and stay in the Requesting Party of the persons referred to in Article 10 of this Treaty; (c) the costs of the videoconference, while maintaining the provision provided for in paragraph 9 of Article 12 of this Treaty; (d) the costs arising from the execution of the request under article 13 of this Treaty; (e) the costs incurred for the purposes specified in Article 14 of this Treaty; (f) the costs and fees of experts; (g) translation, interpretation, and copying costs and fees; (h) storage and transfer costs of seized items. 3. In the event that the execution of a request entails unforeseen expenses, the Parties shall consult in order to agree on the conditions under which the request should be executed and the criteria for dividing the corresponding costs.

Article 26 Settlement of disputes

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

Article 27 Introduction of amendments and additions

Amendments and additions may be made to this Agreement by mutual agreement of the Parties. These amendments and additions are formalized by separate protocols, which are integral parts of this Treaty, which enter into force in accordance with the procedure established by paragraph 1 of Article 28 of this Treaty.

Article 28 Entry into force and termination

1. This Agreement shall be concluded for an indefinite period and shall enter into force on the date of receipt through diplomatic channels of the second notification on the completion by the Parties of the internal procedures necessary for its entry into force. 2. This Agreement shall terminate upon the expiration of six (6) months from the date of receipt through diplomatic channels of a written notification by one of the Parties of its intention to terminate this Agreement. In the event of termination of this Agreement, the mutual legal assistance measures that were initiated during its validity period shall remain in force until they are fully implemented. 3. This Treaty applies to any request sent after its entry into force, including if the relevant crimes were committed before its entry into force.

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

Done in Astana on January 22, 2015, in two copies, each in Kazakh, Italian and English. In case of divergence of interpretation, the English text will prevail.

For the Republic of Kazakhstan

For the Italian Republic

I confirm the authenticity of the text of the Agreement between the Republic of Kazakhstan and the Italian Republic on Mutual Legal Assistance in Criminal Matters, signed in Astana on January 22, 2015 in Kazakh, Italian and English with the text in Russian.

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

RCPI's note! The following is the text of the Agreement in Italian and English.

President

Republic of Kazakhstan

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