Treaty between the Socialist Republic of Vietnam and the Republic of Kazakhstan on Mutual Legal Assistance in Criminal Matter 2017

TREATY

BETWEEN THE SOCIALIST REPUBLIC OF VIET NAM AND THE REPUBLIC OF KAZAKHSTAN ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

The Socialist Republic of Viet Nam and the Republic of Kazakhstan, hereinafter referred to as Parties,

Desiring to enhance their cooperation to effectively combat crimes,

Having due regard for human rights and the rule of law,

Have agreed as follows:

Article 1

Scope of Assistance

1. The Patties shall, in accordance with this Treaty and their respective laws, provide to each other the widest mutual legal assistance in criminal matters.

2. Such assistance may consist of:

a) serving documents;

b) summoning the witness, the expert;

c) providing evidence and taking statements, including by videoconferencing or television links;

d) temporary transfer of sentenced persons in the Requested Party to appear in the Requesting Party to assist in investigations or give evidence;

e) taking measures to trace, restrain, freeze, seize or confiscate proceeds and/or instrumentalities of crime;

f) exchanging information;

g) any other form of assistance consistent with the objectives of this Treaty which is not inconsistent with the law of the Requested Parly.

3. This Treaty does not apply to:

a) the extradition, or the arrest or detention of any person with a view to extradite that person;

b) the enforcement in the Requested Party of criminal judgments imposed in the Requesting Party, except to the extent permitted by the law of the Requested Party and this Treaty;

c) the transfer of sentenced persons to serve sentences.

Article 2

Central Authorities

1. Each Party shall designate a Central Authority for the purpose of the implementation of this Treaty.

2. The following agencies are designated as the Central Authorities as this Treaty comes into effect:

for the Socialist Republic of Viet Nam - the Supreme People's Procuracy of the Socialist Republic of Viet Nam;

for the Republic of Kazakhstan - the Prosecutor General’s Office of the Republic of Kazakhstan.

3. In case of change of its Central Authority or transfer of its functions to other authority, each Party shall inform the other through diplomatic channels.

4. The Central Authorities shall directly communicate with each other to implement this Treaty. Where necessary, the Parties may communicate through the diplomatic channels.

Article 3

Contents and form of requests

1. The request for assistance shall include:

a) the name and address of the requesting competent authority;

b) the name and address of the requested competent authority;

c) the name of a person and his/her permanent residence or office address, the official name and address of a legal entity to which the request relates;

d) a description of the assistance sought, the purpose of the request, the nature and relevant jacks of the case, status of the case and the time limit within which the request should be executed.

e) indication of the applicable law provisions, including the punishment and provisions of statute of limitations.

2. The request for assistance may include:

a) the identity, nationality and domicile of the person to whom the case relates or the other who knows information sought that is related to the said case;

b) information about the identity and location of the person to whom documents are to be served, his/her legal status and the manner in which the service will be effected;

c) matters for which an interrogation seeks, a list of questions posed and, in cases of a request for foe obtaining of evidence, a description of documents, records or items of evidence rendered and, if necessary, a description and identity of the person who is required to render such documents, records or items of evidence;

d) the nature of tasks, a list of questions and requirements for the summoned witness or expert;

e) in case of a request for search, seizure, tracing or confiscation of proceeds and/or instrumentalities of crime, a description of searched property and grounds to believe that the proceeds and/or instrumentalities of crime are existing in the Requested Party and are under the jurisdiction of the Requesting Party and the enforcement of orders or judgments to which the request relates;

f) measures applicable to the request in order to locate or seize proceeds and/or instrumentalities of crime;

g) a description of any particular procedure that should be followed to execute the request;

h) the degree of confidentiality required and the reasons thereof;

i) the purpose, intended date and schedule of the trip of competent officer(s) of the Requesting Party, the presence of whom is desirable during the execution of the request in the territory of the Requested Party;

j) the criminal judgment or order of a court or other competent authority and other documents, articles of evidence or information necessary for the execution of the request.

3. If the Requested Party considers that the information contained in the request is not sufficient to execute the request, it shall request additional information in writing and set a specific date on which such additional information is received;

4. The request and communications shall be made in writing. However, in urgent cases and permitted by the Requested Party, the request and communications may be made and responded to by the expedited means of communication and shall be promptly confirmed in writing thereafter.

5. The request and supporting documents shall be made in the language of the Requesting Party and accompanied by a translation into the language of the Requested Party or into English.

Article 4

Refusal or postponement of assistance

1. Legal assistance under this Treaty shah be refused in any of the following circumstances:

a) the execution of the request is inconsistent with an international agreement to which the Requested Party is a member or inconsistent with its law;

b) the execution of the request would prejudice sovereignty, national security, public order and other essential interests of the Requested Party;

c) the request relates to the prosecution of a person for a crime in respect of which the offender has been finally convicted, acquitted, given amnesty or pardon in the Requested Party or final decision of the competent authority has already been rendered in the Requested Party in respect of the same person for the same crime as indicated in the request;

d) the request relates to a crime that could be no longer prosecuted by reason of lapse of time under the law of the Requested Party;

e) the request relates to an act or omission that does not constitute a crime under the law of the Requested Party.

2. Legal assistance may be postponed by the Requested Party if its execution would interfere with an ongoing investigation, criminal prosecution, court proceedings or enforcement of judgment in its territory.

3. Before refusing a request or postponing its execution under this Article, the Requested Party shall:

a) promptly inform the Requesting Party of reason(s) for any refusal or postponement; and

b) consult with the Requesting Party of whether legal assistance may be provided subject to certain conditions as the Requested Party deems necessary.

4. If the Requesting Party accepts legal assistance subject to the conditions provided in paragraph 3(b) of this Article, it shall comply with them.

Article 5

Execution of requests

1. The Requested Party shall promptly execute the request in accordance with its law and, in so far as it is not inconsistent with the law of the Requested Party, in the manner requested by the Requesting Party.

2. Upon request, the Requested Party shall timely inform the Requesting Party of the date and place of the execution of the request for legal assistance.

3. The Requested Party shall promptly inform the Requesting Party of circumstances which are likely to cause a delay in executing the request.

4. The Central Authority of the Requested Party shall promptly inform the Central Authority of the Requesting Party of the results of the execution of the request.

Article 6

Service of documents

1. The Requested Party shall promptly execute the request of serving documents according to its law.

2. A request for serving a document summoning a victim, witness or expert shall be sent to the Requested Party not less than ninety (90) days before the date on which the attendance is required in the Requesting Party. In urgent cases, the Requested Party may waive this requirement.

3. The Requested Party shall send to the Requesting Party proof of service of the document. If service cannot be effected, the Requesting Party shall be informed of the reasons.

Article 7

Provision of Information

1. The Requested Party may provide copies of original documents or records, except in cases the Requesting Party requires the originals.

2. The Requested Party may provide any document or record in the same manner and conditions as provided to its competent authorities.

3. The Parties may, through their Central Authorities, transfer information and materials related to crime that may lead to initiate a proceeding in the other Party when they consider that the latter Party has jurisdiction to conduct the investigation, prosecution and trial over that crime.

Article 8

Return of materials to the Requested Party

The Requesting Party shall, upon request of the Requested Party, return the materials provided under this Treaty when they are no longer necessary to the criminal matters specified in the request.

Article 9

Search and seizure

The Requested Party shall, according to its law, carry out search in respect of persons or premises to locate, seize and deliver to the Requesting Party materials, documents or items of evidence in criminal cases, which are under the jurisdiction of the competent authorities of the Requesting Party. In such circumstances, the rights of bona fide third parties are respected and protected.

Article 10

Taking evidence and statements

1. The Requested Party shall, upon request and in accordance with its law, obtain testimonies or statements of persons or require them to provide items of evidence for the transmission to the Requesting Party.

2. A person who is called upon to give evidence in the Requested Party under this Article may decline to give evidence where either:

a) the law of the Requested Party permit or require that person to decline to give evidence in similar circumstances in procedures commencing in the Requested Party; or

b) the law of the Requesting Party permit or require that person to decline to give evidence in similar circumstances in procedures commencing in the Requesting Party.

3. If any person in the Requested Party claims that there is a right or obligation to decline to give evidence under the law of the Requesting Party, the Central Authority of the Requesting Party shall, upon request, provide a formal certification of that right or obligation to the Central Authority of the Requested Party as to the existence of that right or obligation. Such formal certification shall be sufficient evidence of the right or obligation stated in it.

4. For the purpose of this Article, taking or giving evidence shall include the production of documents, records or other materials related to obtaining evidence.

Article 11

Temporary transfer of sentenced persons to assist in investigations or give evidence in the Requesting Party

1. A sentenced person in the Requested Party may, upon request, temporarily be transferred to assist in investigations or give evidence in the Requesting Party.

2. The Requested Party shall transfer the sentenced person to the Requesting Party if:

a) that person consents to the transfer to assist in investigations or give evidence; and

b) the Requesting Party consents to comply with specific conditions required by the Requested Party concerning the custody and safety of the transferred person.

3. Where the Requested Party informs the Requesting Party that the transferred person is no longer required to be held in custody, that person shall be released and treated as the person provided by Article 12 of this Treaty.

4. The transferred person under this Article shall be returned to the Requested Party in the manner the Parties have arranged at the conclusion of the matter in relation to which the transfer was sought or at such earlier time as that person's presence is no longer required. The period during which such person was transferred and kept under custody in the Requesting Party shall count towards the period of his/her imprisonment in the Requested Party.

Article 12

Arrangement of other persons’ assistance in investigations or giving evidence in the Requesting Party

1. Upon request, the Requested Party may invite a person who is not subject to Article 11 of this Treaty to travel to the Requesting Party to assist in investigations or give evidence in the Requesting Party.

2. The Requested Party shall, if satisfied with arrangements for the person's safety under an assurance in writing made by the Requesting Party, invite that person to assist in investigations or to give evidence in the Requesting Party. That person shall be informed of accommodation, travelling and any expenses or allowances payable in the Requesting Party. The Requested Party shall inform the Requesting Party of the person's response and, if the person consents, take measures necessary to execute the request.

Article 13

Safe conduct

1. The person present in the Requesting Party under the request subject to Article 11 or Article 12 of this Treaty:

a) shall not be detained, prosecuted, punished or not also be subjected to any civil proceeding in the Requesting Party in respect of any act or omission of the person that is alleged to have occurred before the person's departure from the Requested Party;

b) shall not, without the person's consent, give evidence in any criminal procedure or assist in any investigation other than the criminal matters in respect of which the request is made.

2. Paragraph 1 of this Article shall cease to apply if that person, being free to leave, has not left the Requesting Party within a period of fifteen (15) days after that person has been officially notified that his/her presence is no longer required or, having left, has voluntarily returned.

3. The person who does not consent to assist in investigations or give evidence under Article 11 or Article 12 of this Treaty shall not be liable to any penalty or be subjected to any coercive measure for this in the Requesting Party or in the Requested Party.

4. The person who consents to assist in investigations or give evidence under Article 11 or Article 12 of this Treaty shall not be prosecuted for that person's statement, except that he/she makes intentionally false statements.

Article 14

Proceeds and instrumentalities of crime

1. The Requested Party shall, upon request, endeavor to ascertain whether proceeds and/or instrumentalities of the alleged crime are located in its territory and shall notify the Requesting Party of the results of its inquiries.

2. Where suspected proceeds and/or instrumentalities of crime are found, the Requested Party shall take measures as are permitted by its law to restrain or confiscate such proceeds and/or instrumentalities of crime. The Requested Party may, to the extent permitted by its law, return the proceeds and/or instrumentalities of crime to the Requesting Party. The return of such proceeds and/or instrumentalities of crime shall only be executed when there is a final decision made by a court or another competent authority of the Requesting Party.

3. In the application of this Article, the rights of relevant bona fide third parties shall be respected and protected under the law of the Requested Party.

Article 15

Service of documents and taking of evidence by diplomatic or consular officials

Either Party may serve documents on and take evidence from its nationals in the territory of the other Parly through its diplomatic missions or consular posts therein, provided that the law of the other Party will not be violated and no coercive measures of any kind are taken.

Article 16

Protection of confidentiality and limitation on use

1. The Requested Party may request to keep confidential the information or evidence provided or sources of such information or evidence. The disclosure or use must be consistent with the law of the Requesting Party and be subjected to written consent of the Requested Party.

2. The Requesting Party may request to keep confidential the content of the request for assistance and its supporting documents. If the request cannot be executed without breaching confidentiality, the Requested Party shall so inform the Requesting Party before the request is executed. The Requesting Party shall then determine whether the request should be wholly or partly executed.

3. The Requesting Party shall ensure that information or evidence obtained must be protected against loss, unlawful access and use, modification, disclosure or misuse.

4. Without prior written consent of the Requested Party, the Requesting Party shall not use or disclose information or evidence obtained under this Treaty for any purpose other than the purpose specified in the request.

Article 17

Certification and authentication

1. Documents, transcripts, records, statements and other materials shall be exempted from any legalization, certification or authentication requirements.

2. Documents, transcripts, records, statements and other materials which are to be transmitted to the Requesting Party shall only be certified if the Requesting Party so requests. For that purpose, certification by the Central Authority of the Requested Party shall be sufficient.

Article 18

Representation and expenses

1. Unless otherwise provided in this Treaty, the Requested Party shall represent the interests of the Requesting Party during the execution of the request.

2. The costs related to rendering of legal assistance under this Treaty shall be borne by the Parties in accordance with their laws.

3. The Requested Party shall meet the cost of execution of the request for legal assistance except that the Requesting Party shall bear:

a) all expenses arising from the execution of the request in accordance with Article 11 of this Treaty;

b) travel and stay expenses in the Requesting Party of the persons indicated in Article 12 of this Treaty;

c) travel and stay expenses in the Requested Party, the persons indicated in paragraph 2 (i) of Article 3 of this Treaty;

d) reasonable expenses and fees of experts;

e) expenses and fees of translation and interpretation and the cost of transcript;

f) expenses of the storage, handing over the items seized and recovery of proceeds of crime;

g) the costs of establishing and operating video conferencing or television links and the interpretation and transcription of such proceedings.

4. Whenever the execution of a request entails expenses of an extraordinary nature, the Parties shall consult with a view to agree the conditions under which the request may be executed, and the criteria for sharing the relevant costs.

Article 19

Compatibility with other international arrangements

1. This Treaty shall not affect the rights and duties of the Parties assumed under any other international arrangements to which the Parties are members.

2. This Treaty shall not prevent one Party from providing legal assistance to the other pursuant to other international arrangements to which they are members.

Article 20

Consultations

1. The Central Authorities of the Parties shall consult each other, at times mutually agreed by them, to promote the most effective implementation of this Treaty. The Central Authorities of the Parties may also agree on such practical measures as may be necessary to facilitate the implementation of this Treaty.

2. Any dispute arising from the interpretation or application of this Treaty shall be settled by consultations between the Parties.

Article 21

Entry into force, application and termination of the Treaty

1. This Treaty will remain in force for an indefinite term and enters into force on the thirtieth (30) day from the date of receipt through diplomatic channels of the latter written notification on completion by the Parties of the internal procedures necessary to its entry into force.

2. This Treaty may be amended and supplemented on the mutual consent of the Parties. Any amendment and supplement shall become an integral part of this Treaty and enter into force according to the procedure provided by paragraph 1 of this Article.

3. This Treaty shall be terminated upon expiration of six (6) months from the date of receipt through diplomatic channels by either Party of a written notification of the other Party about its intention to terminate this Treaty. In case of termination of this Treaty, the procedure on legal assistance started during the period of its validity remains in force to its full execution.

4. This Treaty shall apply to any request submitted after its entry into force, even if the relevant criminal offences were committed before the entry into force of this Treaty.

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

DONE in Ha Noi, on 15 June 2017 in two originals, each in Vietnamese, Kazakh and English languages, all texts being equally authentic. In case of divergence of interpretation, the English text shall prevail.