On the ratification of the Agreement between the Republic of Kazakhstan and the Republic of India on the Transfer of Convicted Persons

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The Law of the Republic of Kazakhstan dated February 9, 2016 No. 452-V SAM

To ratify The Agreement between the Republic of Kazakhstan and the Republic of India on the transfer of convicted persons, signed in Astana on July 8, 2015.

President of the Republic of Kazakhstan N. NAZARBAYEV

AGREEMENT between the Republic of Kazakhstan and the Republic of India on the transfer of convicted persons

The Republic of Kazakhstan and the Republic of India (hereinafter referred to as the Contracting States), wishing to contribute to the social rehabilitation of convicted persons in their countries, and believing that this goal should be achieved by providing foreigners who are found guilty and convicted as a result of their crime with the opportunity to serve their sentences in their country, have agreed as follows:

Article 1 Definitions

(a) "Judicial decision" means the decision or verdict of the court or tribunal imposing the punishment; (b) "Receiving State" means the State to which the convicted person may be or has already been transferred in order to serve the sentence or its remainder; (c) "sentence" means any final judicial decision providing for punishment in the form of imprisonment for a fixed term or life imprisonment for committing a crime; (d) "Convicted person" means a person serving a sentence imposed by a court in the form of deprivation of liberty in a Contracting State; (e) "Transferring State" means the State in which the punishment was imposed on a person who may be or has already been transferred.

Article 2 General provisions

1. A person convicted in the territory of one Contracting State may be transferred to the territory of another Contracting State in accordance with the provisions of this Agreement for further serving of his sentence. To this end, it may express to the Transferring State or the Receiving State its desire to be transferred in accordance with this Agreement. 2. The transfer may be requested by any convicted person who is a national of a Contracting State or by any other person who has the right to act on his behalf in accordance with the legislation of a Contracting State by submitting an application to a Contracting State and in accordance with the procedure approved by the legislation of that Contracting State.

Article 3 Central authorities

1. The central authorities responsible for the implementation of this Agreement are: for the Republic of Kazakhstan: Prosecutor General's Office of the Republic of Kazakhstan; for the Republic of India: Ministry of Internal Affairs, Government of the Republic of India. 2. If a Contracting State changes its central authority, it must notify the other State through diplomatic channels.

Article 4 Conditions for transfer

1. In accordance with this Agreement, a convicted person may be transferred under the following conditions:: (a) The person is a national of the Receiving State; (b) The convicted person has not been sentenced to death; (c) The sentence is final; (d) There are no other criminal or other proceedings against the convicted person in the Transferring State in connection with which his presence is required; (e) the convicted person has not been found guilty of committing a war crime; (f) At the time of receipt of the transfer request, the sentence to be served by the convicted person is at least six months, or he has been sentenced to life; (g) The acts or omissions for which the person was convicted in the Transferring State are criminalized in the Receiving State or would constitute crimes if committed (h) The transfer and transfer of the convicted person to the Receiving State will not prejudice the sovereignty, security or any other interests of the Transferring State.; (i) Consent to the transfer has been given by a convicted person or, when any of the Contracting States deems it necessary due to his age or physical or mental condition, by any legal representative or other person authorized to act on his behalf in accordance with the laws of a Contracting State; and (j) the Receiving and Transmitting States agree to the transfer. 2. In exceptional cases, the Transferring and Receiving States may agree to transfer even if the remaining period to be served by the convicted person is less than six months.

Article 5 Obligation to provide information

1. If the convicted person has expressed a desire to be transferred to the Transferring State in accordance with this Agreement, the Transferring State must send the following information and documents to the Receiving State, except in cases where the Receiving or Transferring State has already decided not to consent to the transfer: a) the name and surname, nationality, date and place of birth of the convicted person and, if available, his address in the receiving State, together with a copy of his passport or any other identifying document and, if possible, fingerprints of the convicted person; b) a statement of the facts on the basis of which the sentence was imposed; c) the type, time and date of commencement of the sentence; d) a certified copy of the sentence and copies of relevant articles of legislation, including according to which the sentence was passed against the convicted person; (e) A medical, social or any other report on the convicted person's past and conduct, if necessary for the examination of his application or for determining the type of imprisonment; (f) Any other information that the Receiving State may need to consider the possibility of transfer, as well as to inform the convicted person of all the consequences of his transfer. its legislation; (g) A statement related to the convicted person's request for transfer, or a person authorized to act in the interests of the convicted person, in accordance with the legislation of the Transferring State; (h) a document indicating how long the sentence has already been served, including information on pre-trial detention, mitigation of punishment, or any other factors, related to the execution of the sentence. 2. In order to make a decision on the request in accordance with this Agreement, the Receiving State must send the following information and documents to the Transmitting State, except in the case when the Receiving or Transmitting State has decided to disagree with the transfer: a) confirmation or a certified copy of a document certifying that the convicted person is a citizen of the Receiving State; (b) Copies of the relevant legislation of the Receiving State providing that the acts or omissions of the person on the basis of which the sentence was imposed in the Transferring State constitute an offence under the legislation of the Receiving State or would constitute an offence if committed on its territory; (c) Information regarding any law or regulation indicating the procedure for the execution of a sentence in the Receiving State after the transfer of a convicted person, including if the provisions of subparagraph (c) apply. paragraph 1 of article 10 of this Agreement; (d) the willingness of the Receiving State to agree to the transfer of the convicted person and to commit to the execution of the remainder of the sentence against the convicted person; and (e) any other information or document that the Transferring State may need.

Article 6 Requests and responses

1. Requests for the transfer of a convicted person must be made in writing in the prescribed form, if any, sent by the central authority of the Transferring State through diplomatic channels to the central authority of the Receiving State. The responses must be transmitted through the same channels. 2. The receiving State must immediately inform the Transferring State of its decision on consent or disagreement regarding the requested transfer.

Article 7 Consent and its confirmation

1. The transferring State must ensure that the person who is required to consent to the transfer in accordance with subparagraph (i) paragraph 1 of Article 4 of this Agreement, does so voluntarily and with full awareness of the legal consequences resulting from such. The procedure for giving such consent is regulated, if provided for, by the legislation of the Transferring State. 2. The transmitting State should provide an opportunity for the Receiving State to verify that consent has been given in accordance with the conditions specified in paragraph 1 of this article.

Article 8 Effects of transfer on the receiving State

1. The competent authorities of the Receiving State shall continue the execution of the sentence by issuing a judicial or administrative decision, if required by its national legislation, in accordance with the conditions specified in article 10 of this Agreement. 2. Subject to the provisions of article 12 of this Agreement, the execution of a sentence should be governed by the law of the Receiving State, and only that State is competent to make all relevant decisions.

Article 9 Transfer of a convicted person

The transfer of a convicted person by the Transferring State to the Receiving State is carried out at a place agreed upon between the Transferring and Receiving States. The receiving State is responsible for the transfer of the convicted person from the Transferring State and is also responsible for the detention of the convicted person outside the territory of the Transferring State.

Article 10 Continuation of the execution of the sentence

After receiving the convicted person, the Receiving State must ensure the following: (a) The procedure and procedures for the execution of a sentence must comply with its applicable national legislation; (b) The execution of a sentence must comply with a judicial decision without changing the term of the sentence and the conditions of its serving. In any case, the sentence cannot be aggravated.; (c) If the national legislation of the Receiving State provides for a maximum term of punishment less than the term of punishment determined by the Transferring State, the Receiving State must impose the maximum term of punishment provided for in its legislation for a similar offence. In the event of such a conversion of the sentence, the Receiving State must immediately provide a copy of the official document on the conversion of the sentence to the Transferring State.; (d) The term of the custodial sentence includes the term served by the convicted person in the territory of the Sending State of the sentence; (e) The receiving State undertakes not to replace the custodial sentence with a monetary penalty.

Article 11 Consequences of the execution of the sentence for the transferring State

If the Receiving State notifies the Transmitting State in accordance with subparagraph (a) According to paragraph 1 of Article 15 of this Agreement on the execution of the sentence, such notification shall have the effect of release from punishment in the Transmitting State.

Article 12 Judicial review, pardon, amnesty or commutation of punishment

1. Only the transferring State has the right to review its verdict on any requests for review. 2. Any of the Contracting States has the right to apply a pardon, amnesty or commute punishment in accordance with its constitution or other laws.

Article 13 Termination of execution of sentence

1. The transferring State must immediately notify the Receiving State of any decisions taken on its territory that result in the termination of the execution of the sentence or part of it. 2. The receiving State must terminate the execution of the sentence or part of it as soon as the Transferring State informs of any decision or measure as a result of which the sentence becomes null and void.

Article 14 Inadmissibility of double punishment

After the transfer, the convicted person may not be prosecuted or tried in the Receiving State for the same acts that led to the imposition of punishment in the Transferring State.

Article 15 Information on the execution of the sentence

1. The receiving State must inform the Transmitting State: (a) The completion of the execution of the sentence; or (b) if the convicted person has escaped from custody before the end of the execution of the sentence, in such cases the Receiving State should take the necessary measures to ensure arrest in order to serve the remainder of the sentence and bring him to justice for the commission of this crime in accordance with the legislation of the Receiving State; (c) if The transferred convicted person died before the end of his sentence. 2. The receiving State must also submit a special report on the execution of the sentence, if requested by the Transferring State.

Article 16 Transit

1. If any of the Contracting States has agreed on the transfer of convicted persons with any third State, the other Contracting State must cooperate in facilitating the transit of transferred convicted persons through its territory in accordance with such an agreement, except when it has the right to refuse transit.: (a) If the convicted person is a national of a Contracting State; (b) If the request is likely to prejudice the sovereignty, security, public order or any other essential interests of a Contracting State. 2. A Contracting State intending to carry out such transit must notify the other Contracting State of such transit in advance.

Article 17 Expenses

Any costs related to the application of this Agreement must be borne by the Receiving State, with the exception of costs incurred exclusively in the territory of the Transmitting State. If India is the Receiving State, it has the right to request compensation for all or part of the transfer costs from the convicted person or another source.

Article 18 Languages

For the purposes of this Agreement, the Contracting States shall use their official languages, providing translation into the official language of the other Contracting State or into English.

Article 19 Scope of application

This Agreement applies to the enforcement of sentences imposed both before and after the entry into force of this Agreement.

Article 20 Dispute resolution

1. The central authorities should make efforts to mutually resolve any dispute arising from the interpretation, implementation or application of this Agreement. 2. If the central authorities cannot mutually resolve the dispute, it must be resolved through diplomatic channels.

Article 21 Amendments and additions

Any amendments and additions to this Agreement agreed upon by the Contracting States shall enter into force in the same manner as the Agreement itself.

Article 22 Final provisions

1. This Agreement is subject to ratification. Each Contracting State must notify the other in writing through diplomatic channels as soon as possible of the completion of the legal procedures necessary for the entry into force of this Agreement. The Agreement shall enter into force on the first day of the second month following the date of the last notification. 2. This Agreement remains in force indefinitely. This may, however, be terminated by any Contracting State by giving written notice of termination to the other Contracting State. The termination shall take effect after six months from the date of such notification. 3. Notwithstanding any termination, this Agreement applies to the enforcement of sentences against convicted persons who were transferred in accordance with this Agreement prior to the date on which such termination takes effect.

In witness whereof, the undersigned, being duly authorized thereto by the Contracting States, have signed this Agreement.

Done in Astana on July 8, 2015, in two original copies, each in Kazakh, Hindi and English, all three texts being authentic. In case of disagreement in the interpretation of this Agreement, the English text shall prevail.

For the Republic of Kazakhstan For the Republic of India

I confirm the authenticity of the text of the Agreement between the Republic of Kazakhstan and the Republic of India on the transfer of Convicted Persons, signed in Astana on July 8, 2015 in Kazakh, Hindi 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 text of the Agreement is attached in Hindi and English.

President

Republic of Kazakhstan

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