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

Home / RLA / On the ratification of the Agreement between the Republic of Kazakhstan and the Principality of Monaco on Mutual Legal Assistance in Criminal Matters

The Law of the Republic of Kazakhstan dated November 12, 2015 No. 397-V SAM

To ratify The Agreement between the Republic of Kazakhstan and the Principality of Monaco on mutual legal assistance in criminal matters, concluded in Monte Carlo on March 5, 2015.

President of the Republic of Kazakhstan N. NAZARBAYEV

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

The Republic of Kazakhstan and the Principality of Monaco, represented by the Department of Justice, hereinafter referred to as the Parties, wishing to promote effective cooperation between the Parties in the field of combating crime, based on respect for sovereignty, equality and mutual benefit, bearing in mind that these goals can be achieved through the conclusion of an international bilateral agreement establishing the procedure for providing legal assistance in in criminal cases, we 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) locating and identifying a person; (b) handing over documents and materials related to 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 individuals; (f) Temporarily transferring detainees to obtain their testimony or participate in other legal proceedings; (g) Conducting forensic examinations, examining documents or objects; (h) Conducting searches, seizing evidence and seizing assets; (i) Exchanging information on national legislation; (j) Obtaining any other legal assistance other than that provided for in paragraph 3 of this Article, which does not contradict the national legislation of the Requested Party. 3. This Treaty does not apply to: (a) the execution of orders for the arrest of persons and other measures restricting the personal freedom of persons; (b) the extradition of persons; (c) the enforcement of sentences; (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 for the Requested Party. 2. If the execution of a request for assistance requires the implementation of coercive measures in accordance with the legislation of the Requested Party, such as searches, seizures or arrests, assistance is provided only if the act for which assistance is requested constitutes a crime in accordance with the national laws of both Parties.

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) There are substantial grounds to believe that the request is aimed at criminalizing, punishing, or facilitating other types of actions against a person for reasons of religion, gender, sexual orientation, race, nationality, or political beliefs, or that the person's position may be harmed for any of these reasons.; (d) A request for assistance refers to the criminal prosecution of a person for a crime for which the person has already been convicted, acquitted or pardoned in the Requested Party or for which the person cannot be prosecuted due to the expiration of the statute of limitations if the crime was committed within the jurisdiction of the Requested Party; (e) The execution of the request poses a threat to the sovereignty, security, public order or other essential interests of the Requested Party, or may conflict with the fundamental principles of its national legislation; (f) The request for assistance relates to a military offence, which is not a crime under ordinary criminal law applicable in general; (g) The request The request for assistance is related to the accusation of a person for committing a crime considered as an offense of a political nature.; (h) The request for assistance relates to a direct tax offence not provided for by the national legislation of the Requested Party; (i) The request for assistance involves the prosecution of a person for acts that would not be considered a crime by the Requested Party if those acts were committed in a territory under its jurisdiction.; (j) The request for assistance involves the prosecution of a person for a crime committed outside the Requesting Party and the national legislation of the Requested Party does not criminalize a crime committed in similar circumstances outside its territory; (k) The implementation of the requested assistance may complicate the investigation or judicial proceedings in the territory of the Requested Party, harms the security of anyeither a person or includes special fees for that Party. 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 its territory. 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 immediately 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 determine the central authorities responsible for its implementation: for the Republic of Kazakhstan, the central authority is the Prosecutor General's Office; for the Principality of Monaco, the central authority is the Department of Justice. 2. The Parties notify each other about any changes regarding the central authority 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 official 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) 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 9 of this Treaty; (g) Information necessary to obtain testimony by videoconference, as provided for in paragraph 5 of Article 11 of this Treaty. 3. The request shall also include, as appropriate, the following: (a) information about the persons being investigated; (b) information about the person who is to be identified or whose location is to be discovered.; (c) Information on the identity and place of residence of the person to be served, as well as the manner in which it is to be performed; (d) Information on 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 examined; (f) the location and description of the place to be searched and the items to be seized or arrested; (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 observed and the corresponding justification; (i) 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 Treaty; (j) any other information that it can 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.

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 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 officials indicated 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 inform the Requesting Party of the results of the execution of the request upon receipt of its original. 5. 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. In the case of a large volume of documents collected during the execution of the request, the central authorities of the Parties hold consultations to determine the list of documents to be translated into English.

Article 7 Search for persons

In accordance with the provisions of its national legislation, the Requested Party shall do everything possible to locate the persons indicated in the request and believed to be on its territory, and shall inform the Requesting Party of the results.

Article 8 Obtaining testimony from the Requested Party

1. The requested Party, in accordance with its national legislation, shall obtain testimony from witnesses, victims, experts, persons under investigation, detained or convicted in the Requested Party, 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. For the purposes provided for in paragraph 3 of Article 6 of this Treaty, 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. 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 either 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 submit statements and give evidence whenever this is provided for by the national legislation of the Requesting Party and does not contradict the national legislation of the Requested Party.

Article 9 Summoning and handing over 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 official or 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. The Requesting Party shall transmit to the Requested Party a request for delivery of a notice of summons to appear to the competent authority of the Requesting Party no later than sixty calendar days before the day set for appearance, except in urgent cases when the Requested Party has agreed on a shorter period. 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 non-appearance.

Article 10 Guarantees and special rule

1. If a person is located in the territory of the Requesting Party in accordance with Article 9 of this Treaty, during the period during which the person remains in the Requesting Party, he/she: a) may not, regardless of his/her nationality, be held criminally or administratively liable, detained or punished in its territory for an act committed prior to entry into the territory of the Requesting Party; (b) Should not be forced to give evidence or other statements, or to participate in any event related to a proceeding other than the one indicated in the request, unless that person consents to it. 2. Paragraph 1 of this Article shall cease to have effect if the person indicated therein: (a) does not leave the territory of the Requesting Party within fifteen 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. The victim, witness or expert, who is interrogated in accordance with the procedure provided for in Articles 8 or 9 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 11 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. 6. The competent authority of the Requested Party shall summon a person to appear in accordance with the national legislation of the Requested Party. 7. Regarding the conduct of procedural actions via videoconference, the following provisions apply: a) the competent authorities of both Parties are present during 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 the Requested Party. If the competent authority of the Requested Party considers that the fundamental principles of the national legislation of the Requested Party are not being observed 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 called for during interrogation, he has the right to refuse to give evidence if the national legislation of either Party allows this. 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 its holding, information about the identity of the person who appeared, information about the identities of other persons participating in the event and who they appeared in, as well as the technical conditions under which testimony or other procedural actions were taken. 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 12 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 11 of this Treaty, the Requested Party may, upon request, temporarily transfer the person in custody to the Requesting Party in order to provide him with the opportunity to appear before its competent authority for questioning, giving evidence, filing statements or participating in other procedural actions, provided that the above-mentioned person, in accordance with to this effect, and that the Parties had previously agreed in writing on the transfer and its terms. 2. The temporary transfer of a person may be carried out provided that: (a) this does not interfere with the investigation or criminal prosecution conducted against the person in question in the Requested Party; (b) the transferred person will be detained in the Requesting Party; (c) such transfer does not contribute to prolonging the period of the person's detention. 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 10 of this Agreement. 7. The requested Party may refuse a temporary transfer if there are significant and substantial grounds about which it is obliged to inform the Requesting Party.

Article 13 Protection of victims, witnesses and other persons participating 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 14 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.

Article 15 Provision of documents, materials or items

1. When a request concerns the transfer of documents or materials not specified in Article 14 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 16 Searches, seizures and arrests

1. Upon request, the requested Party shall establish or verify in its territory the location of proceeds of crime or items related to the crime, and inform the Requesting Party of the results. In the request, the Requesting Party shall indicate to the Requested Party the grounds for the possible presence in the latter's territory of any proceeds of crime or items related to the crime. 2. Upon discovery of proceeds of crime or items related to a crime, the Requested Party, upon request, shall take any measures provided for by its national legislation with a view to seizing or seizing proceeds of crime or items related to a crime. 3. Upon request, the Requested Party transfers items related to the crime in accordance with the terms agreed upon by the Parties. 4. In applying this article, any rights of the Requested Party or third parties with respect to items related to the crime are respected.

Article 17 Establishment of the bank and financial information

1. Upon request, the Requested Party shall immediately determine whether the 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 credit institutions, electronic money institutions, payment institutions and enterprises engaged in financial activities. 3. The provision of legal assistance referred to in this article may not be refused on the basis of professional secrecy.

Article 18 Compatibility with other instruments of cooperation or forms of legal assistance

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 19 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 20 Exchange of information on national legislation

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

Article 21 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 22 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 if: - they are signed or certified by a judge, an employee of the competent authority or an official of the Party from which they originate; - they bear the official stamp of the Party from which they originate, or are certified by a minister, ministry or government official of that Party.

Article 23 Confidentiality

1. Upon request, 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 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 24 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 this case, 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 9 of this Treaty; (c) The costs of the videoconference, while maintaining the provision provided for in paragraph 9 of article 11 of this Treaty; (d) the costs arising from the execution of the request under article 12 of this Treaty; (e) The costs incurred for the purposes specified in article 13 of this Treaty; (f) the costs and fees of experts; (g) the costs and translation and interpretation fees and copying costs; 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 25 Dispute settlement

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

Article 26 Making changes and additions

By mutual agreement of the Parties, amendments and additions may be made to this Agreement, which are its integral parts and are formalized by separate protocols, which enter into force in accordance with the procedure established by paragraph 1 of Article 27 of this Agreement.

Article 27 Entry into force and termination

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

Done in Monte Carlo on March 5, 2015, in two originals, each in the Kazakh, French and English 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 English text.

For the Republic of Kazakhstan

For the Principality of Monaco

I confirm the authenticity of the text of the Agreement between the Republic of Kazakhstan and the Principality of Monaco on Mutual Legal Assistance in Criminal Matters, signed in Monte Carlo on March 5, 2015 in Kazakh, French 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 French and English.

President

Republic of Kazakhstan

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