On the ratification of the Agreement between the Republic of Kazakhstan and Ukraine on Legal Assistance in Criminal Matters

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The Law of the Republic of Kazakhstan dated October 19, 2020 No. 368-VI SAM.

To ratify the Agreement between the Republic of Kazakhstan and Ukraine on Legal Assistance in Criminal Matters, signed in Astana on October 29, 2018.

President of the Republic of Kazakhstan

K. TOKAEV

AGREEMENT BETWEEN THE REPUBLIC OF KAZAKHSTAN AND UKRAINE ON LEGAL ASSISTANCE IN CRIMINAL MATTERS

(Entered into force on December 24, 2020, Bulletin of International Treaties of the Republic of Kazakhstan 2020, No. 6, Article 32)

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

Striving to develop cooperation between the competent authorities of both Sides in criminal matters,

Desiring to create a bilateral framework for cooperation and promote the application of the provisions of multilateral international treaties to which the Parties are parties in the field of legal assistance in criminal matters,

We have agreed on the following:

ARTICLE 1 PURPOSE AND SCOPE OF LEGAL ASSISTANCE

1. In accordance with the provisions of this Agreement, the Parties shall provide each other with the maximum possible legal assistance in criminal cases of crimes that, at the time of submitting a request for assistance, fall within the jurisdiction of the competent authorities of the Requesting Party.

2. Legal assistance includes:

a) delivery of documents;

(b) Locating or identifying persons and objects;

(d) The temporary transfer of persons in custody;

(e) Carrying out search, seizure and confiscation;

f) inspection of objects, places and documents;

(g) Exchange of information and evidence;

(h) Establishment of joint investigative teams;

i) any other forms of assistance provided for by the national legislation of the Parties.

ARTICLE 2 CENTRAL AUTHORITIES

1. For the purposes of this Agreement, the central authorities designated by the Parties shall interact directly with each other.

2. The central authorities are:

for the Republic of Kazakhstan - the Prosecutor General's Office of the Republic of Kazakhstan - for inquiries on pre-trial procedures requiring the approval of a prosecutor (court), the Supreme Court of the Republic of Kazakhstan - for inquiries on cases pending before courts, as well as the National Security Committee, the Agency for Civil Service Affairs and Anti-Corruption, the Ministries of Defense, Internal Affairs, Finance of the Republic Kazakhstan - for other queries;

for Ukraine, the Prosecutor General's Office of Ukraine (at the stage of pre-trial investigation) and the Ministry of Justice of Ukraine (during judicial proceedings and execution of the sentence).

3. If the central authority that received the request is incompetent to consider it, the request is immediately forwarded to the relevant central authority.

4. In the event of a change in the names of central bodies or the transfer of their functions to other State bodies, the Parties shall notify each other through diplomatic channels.

ARTICLE 3 FORM AND CONTENT OF REQUESTS

1. The request shall be drawn up in writing, signed and stamped by the competent authority of the Requesting Party.

2. The request includes the following:

a) the name of the competent authority that made the request;

(b) The purpose and description of the requested assistance;

(d) An indication of the applicable provisions of national legislation;

(e) A list of requested actions and a justification for their connection with the criminal case;

(f) Where appropriate, details of the payments and compensations to which the person called to appear is entitled; and

g) if necessary, an indication of the persons whose presence is requested during the execution of the request.

3. Whenever possible, the request also includes:

a) information about the identity and location of the person to whom the documents are being served, their procedural status and the manner in which the service is to be performed;

(b) Information about the identity and location of the person who is to testify or otherwise assist in criminal proceedings, and his or her procedural status;

c) information about the identity of the person or object whose location is to be determined;

(d) An accurate description of the place or person to be searched, as well as the funds, facilities, assets and property to be seized, seized and confiscated;

(e) A description of the manner in which testimony or statements are to be accepted and recorded;

f) a list of questions to be asked to the person;

g) a description of the procedure to be followed when executing the request;

(h) Confidentiality requirements; and

i) any other information that may be provided to the Requested Party to facilitate the execution of the request.

4. Appropriate electronic means of communication, in particular fax, may be used to transmit a request for assistance in accordance with this Agreement, provided that the original request is sent by mail.

ARTICLE 4 LANGUAGE

1. The request and the documents attached thereto shall be drawn up in the language of the Requesting Party and accompanied by a certified translation into the language of the Requested Party or into Russian.

2. The documents on the execution of the request are drawn up in the language of the Requested Party and are accompanied by a certified translation into the language of the Requesting Party or into Russian.

ARTICLE 5 REFUSAL OF ASSISTANCE

1. The requested Party has the right to refuse to provide the requested assistance in whole or in part if:

a) execution of the request poses a threat to sovereignty, security, public order, other essential interests of the Requested Party or contradicts its legislation;

(b) The request concerns coercive measures or procedural actions requiring special authorization in connection with an act that is not a crime under the law of the Requested Party;

(c) There are substantial grounds to believe that the request is intended to criminalize a person for reasons of race, gender, religion, nationality, ethnic origin or political beliefs, or that the person's position may be harmed for any of these reasons.

2. Before refusing to provide assistance, the central authority of the Requested Party consults with the central authority of the Requesting Party regarding the possibility of providing it under certain conditions.

3. Any refusal to provide assistance must be motivated and the grounds for refusal must be communicated to the Requesting Party.

ARTICLE 6 EXECUTION OF REQUESTS

1. Requests shall be executed in accordance with the national legislation of the Requested Party.

2. The requested Party shall execute the request for assistance as soon as possible.

3. If the request cannot be executed in whole or in part in accordance with the procedural requirements specified in the request, the Requested Party shall execute the request to the extent that it does not contradict its fundamental legal principles, even if such requirements are not provided for by its national legislation.

4. At the request of the Requesting Party, the Requested Party shall inform in advance of the time and place of execution of the request so that representatives of the competent authority of the Requesting Party can be present during the execution of the request.

5. The requested Party has the right to delay the execution of the request if such execution serves as an obstacle to criminal proceedings conducted by the competent authorities of the Requested Party.

6. Before postponing the provision of assistance, the Requested Party, after consultation with the Requesting Party, considers whether it can comply with it in whole or in part under certain conditions.

7. Any decision to postpone the execution of a request must be motivated.

8. The materials received during the execution of the request shall be sent to the central authority of the Requesting Party, unless the central authorities of the Parties have agreed on a different procedure for their provision.

9. The materials must be signed and sealed by the competent authority.

ARTICLE 7 CONFIDENTIALITY AND RESTRICTIONS ON USE

1. The Requesting Party has the right to request from the Requested Party to ensure the confidentiality of the request, its contents and materials obtained as a result of its execution. If the Requested Party is unable to comply with the confidentiality requirement, it will immediately inform the Requesting Party, which will determine whether the request should still be fulfilled.

2. Without the consent of the Requested Party, the Requesting Party may not use any information or evidence obtained under this Agreement for purposes other than those mentioned in the request.

ARTICLE 8 HANDING OVER DOCUMENTS

1. The Requested Party shall serve the documents submitted to it for this purpose by the Requesting Party.

2. After delivery, the requested Party shall send to the Requesting Party an appropriate confirmation with the signature of the official and 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 carried out, the Requested Party shall immediately notify the Requesting Party and inform it of the reasons for non-delivery.

3. Summonses requiring persons to appear before the competent authorities of the Requesting Party shall be transmitted to the Requested Party at least sixty (60) calendar days before the date of the scheduled appearance. In urgent cases, the Requested Party may agree on a shorter period.

4. A person who fails to appear at the competent authority of the Requesting Party is not subject to any punishment or compulsory measure, even if the summons contains a warning about possible liability in case of non-appearance.

ARTICLE 9 IMMUNITY

1. A person, regardless of his nationality, who appears on a summons to the competent authority of the Requesting Party may not be subjected to criminal prosecution, detention or any other restriction of his personal freedom in the territory of that Party in respect of acts or criminal convictions that preceded his entry into the territory of the Requesting Party and are not indicated in the summons.

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

a) does not leave the territory of the Requesting Party within thirty (30) 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.

ARTICLE 10 LOCATION OR IDENTIFICATION OF PERSONS AND OBJECTS

1. Either Party has the right to request from the other Party to establish the location, identify persons and inform the place of residence or place of registration of wanted persons who are to appear before the competent authorities in criminal proceedings and are allegedly located in the territory of the Requested Party.

2. Either Party has the right to request from the other Party to establish the location, identify the objects and provide relevant data, or apply any other measure that allows the location and identification to be determined in accordance with its national legislation.

3. The requested information must be communicated to the Requesting Party on the basis of a request sent in accordance with Article 3 of this Treaty.

ARTICLE 11 TEMPORARY TRANSFER OF PERSONS IN CUSTODY TO THE REQUESTING PARTY

1. A person in custody of the Requested Party, whose personal appearance as a witness is requested by the Requesting Party, is temporarily transferred to the territory of that Party, provided that he is transferred back within the period specified by the Requested Party, which should not exceed six (6) months. The requesting Party may request an extension of the specified period.

2. The transfer may be refused if:

(a) The person in custody does not consent to this;

(b) The presence of a person is necessary during criminal proceedings conducted in the territory of the Requested Party;

d) there are other grounds for refusal of transfer.

3. The transferred person is held in custody by the Requesting Party, except in cases when the Requested Party informs about the need for his release.

ARTICLE 12 TEMPORARY TRANSFER OF PERSONS IN CUSTODY TO THE REQUESTING PARTY

1. A requesting Party that has requested assistance that may require the personal appearance of a person in custody on its territory may, subject to the consent of the person in custody, temporarily transfer him to the territory of the Requested Party, where the request will be executed.

2. The means for carrying out the temporary transfer of a person and the period for which this person must be transferred to the Requested Party must be agreed between the central authorities of the Parties.

3. The transferred person remains in custody of the Requested Party, except in cases when the Requesting Party requests his release.

4. The period of detention in the Requested Party shall be included in the period of detention to be served by that person in the Requesting Party.

ARTICLE 13 SEARCH AND SEIZURE

1. The requested Party shall search, seize and transfer any object, document or other object, provided that the request for assistance contains information that justifies such actions, and the crime for which the request is made is punishable under the national legislation of both Parties.

2. The rights and interests of third parties in relation to the transferred object, document or other object must be respected.

ARTICLE 14 ASSISTANCE IN CONFISCATION PROCEDURES

1. The Parties shall provide each other with assistance in the framework of procedures that include the identification, seizure and confiscation of proceeds of crime, tools or objects of crime in accordance with the national legislation of the Requested Party.

2. Upon request, the Requested Party shall transfer in whole or in part any proceeds from crime, tools or objects of crime, as well as any financial resources received from their sale, in accordance with the terms agreed between the Parties. The requested Party is considering the possibility of reaching an agreement with the other Party on an ongoing basis or on a case-by-case basis on the division of confiscated proceeds from crime, tools or objects of crime, or financial resources obtained from their sale. Such agreements are reached between the central authorities of the Parties.

ARTICLE 15 RETURN OF OBJECTS, DOCUMENTS AND OTHER OBJECTS

Items, documents and other objects received on the basis of the request and transferred to the Requesting Party are returned to the Requested Party as soon as possible, except in cases when the latter waives its right to return them.

ARTICLE 16 ESTABLISHMENT OF FINANCIAL INFORMATION

1. Upon request, the Requested Party, in accordance with its national legislation, shall immediately determine whether the person suspected or accused of committing a crime is a holder of accounts with a 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 assistance referred to in this article may not be refused on the basis of bank secrecy.

ARTICLE 17 HEARING BY VIDEOCONFERENCE

1. If it is not possible for a person who is located on the territory of one of the Parties to appear and must be heard as a witness, expert, victim, suspect or accused by the competent authorities of the other Party, the latter may request the hearing of such person by videoconference, as provided for in paragraphs 2-8 of this article.

2. The requested Party agrees to be heard by videoconference, provided that it has the technical means to conduct a videoconference. If the Requested Party does not have access to the technical means for conducting a videoconference, such means may be provided to it by the Requesting Party by mutual agreement.

3. In addition to the information specified in article 3 of this Treaty, requests for a videoconference hearing must contain the name of the competent authority and information about the persons who will conduct the hearing.

4. The competent authority of the Requested Party shall summon the relevant person to appear in accordance with its national legislation.

5. When listening via videoconference, the following rules apply:

a) a representative of the competent authority of the Requested Party is present during the hearing, uses the services of an interpreter, if necessary, and ensures the identification of the person being heard and compliance with the fundamental principles of 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 violated during the hearing, it must immediately take the necessary measures to ensure that the hearing continues in accordance with these principles.;

(b) Measures to protect the person being heard should, if necessary, be agreed upon between the competent authorities of the Parties.;

(c) The hearing shall be conducted directly by a representative of the competent authority of the Requesting Party or under his supervision in accordance with its national legislation.;

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

(e) The person being heard may exercise the right not to testify in accordance with the national legislation of either Party.

6. Without prejudice to any measures agreed upon for the protection of persons, the competent authority of the Requested Party shall draw up a protocol on the conduct of the hearing, indicating the date and place of the hearing, the identity of the person heard, the identity and status of all other persons in the Requested Party who participated in the hearing, the technical and other conditions under which the hearing took place. The Protocol is sent through the central authorities of the Parties.

7. If a witness, expert, or victim knowingly gives false testimony or refuses to give evidence, they are liable under the legislation of the Requested Party.

8. If a hearing of a suspect or accused person is requested via videoconference, the decision to hold a videoconference and the procedure for holding it are agreed upon by the Parties and must comply with their national legislation. The consent of the suspect or the accused person is mandatory for the hearing. A declaration of consent is given before the competent authority of the Requested Party and is included in the protocol, which is sent to the Requesting Party.

ARTICLE 18 JOINT INVESTIGATION TEAMS

1. The Parties, in accordance with their national legislation, may establish joint investigative teams on specific cases and for a limited period, which may be extended by mutual agreement of the Parties.

2. A joint investigation team can be formed, in particular, when:

a) Investigations conducted by the competent authorities of one Party are complex and require joint activities with the other Party;

(b) The competent authorities of both Parties shall conduct investigations of crimes in which the circumstances of the case require coordinated and coordinated action by both Parties.

The creation of a joint investigation team can be initiated by either Party.

3. In addition to the information specified in the relevant provisions of article 3 of this Treaty, requests for the establishment of a joint investigation team should contain proposals on the composition of the group.

4. Investigative measures are carried out by members of the joint investigation team of the Party in whose territory they are conducted.

5. Agreements regarding the participation in the activities of the joint investigation team of other persons who are not representatives of the competent authorities of the Parties that created such a group may be reached to the extent permitted by the national legislation of the Parties or the provision of any legal instrument applicable between them.

ARTICLE 19 VOLUNTARY TRANSFER OF INFORMATION

1. Without prejudice to their own investigations or proceedings, the competent authorities of either Party may, without prior request, transmit information obtained during the investigation to the competent authorities of the other Party, if such information helps the other Party initiate or complete the investigation or proceedings, or when such information may serve as the basis for a request by the other Party.

2. The Party that sent the information specified in paragraph 1 of this Article has the right to demand compliance with the conditions regarding the use of such information by the other Party, which complies with such conditions.

ARTICLE 20 EXPENSES

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

2. The requested Party shall bear the costs incurred in connection with the execution of the request in its territory.

3. 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 subparagraph (g) of paragraph 2 of Article 3 of this Treaty;

(b) The costs of travel and stay in the Requesting Party of the persons referred to in paragraph 3 of Article 8 of this Treaty;

d) expenses and fees of experts;

e) costs and fees for translation and interpretation.

4. When the execution of a request entails expenses of an extraordinary nature, the Parties shall consult in order to agree on the conditions under which the request should be executed and the criteria for allocating the corresponding costs.

ARTICLE 21 EXCHANGE OF INFORMATION ON CRIMINAL PROSECUTION

Upon request, the Requested Party shall transmit to the Requesting Party information on criminal prosecution, previous convictions and sentences imposed against citizens of the Requesting Party, if these persons are prosecuted in the territory of the Requesting Party.

ARTICLE 22 EXEMPTION FROM LEGALIZATION

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 23 RELATIONSHIP WITH OTHER INTERNATIONAL TREATIES

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

ARTICLE 24 CONSULTATIONS

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

ARTICLE 25 FINAL PROVISIONS

1. This Agreement shall be concluded for an indefinite period and shall enter into force thirty (30) days after the date of receipt of the last written notification through diplomatic channels that the Parties have completed the internal procedures necessary for its entry into force.

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

3. This Agreement shall terminate upon the expiration of one hundred and eighty (180) days from the date of receipt, through diplomatic channels, by one of the Parties of a written notification by the other Party of the latter's intention to terminate it.

4. 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.

5. This Treaty also applies to crimes committed before its entry into force.

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto, have signed this Agreement.

Done in Astana on October 29, 2018, in two copies, each in the Kazakh, Ukrainian and Russian languages, all texts being equally authentic.

In case of disagreement in the interpretation of the provisions of this Agreement, the Parties shall refer to the text in Russian.

FOR THE REPUBLIC

Kazakhstan

FOR UKRAINE

Note from <url>!

The text of the Agreement in Ukrainian is attached next.

President

Republic of Kazakhstan

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