Treaty on Extradition between the Socialist Republic of Vietnam and the Kingdom of Spain 2014

TREATY ON EXTRADITION

BETWEEN THE SOCIALIST REPUBLIC OF VIETNAM AND THE KINGDOM OF SPAIN

The Socialist Republic of Viet Nam and the Kingdom of Spain, hereinafter referred to as “Parties”;

Desiring to maintain and strengthen the ties joining their two countries;

Desiring to establish more effective cooperation between their two States in the persecution of crimes and the enforcement of sentences; especially in the fight against organized crime and terrorism;

Convinced of the interests of the both Parties in strenthening cooperation on criminal matters, especially extradition,

Have agreed as follows:

Article 1

Obligation to extradite

The Parties agree to extradite to each other, in accordance with the provisions of this Treaty and at the request of the Requesting Party, those persons found on their territory and who are wanted by the Requesting Party for prosecution or for the enforcement of a sentence or security measure handed down by its courts, for an extraditable offence.

Article 2

Extraditable Offences

1. Extradition shall only be granted for those offences punishable under the laws of both Parties, and which meet one of the following conditions:

a) If the extradition request is aimed at conducting criminal proceedings, that the offence carries a sentence under the legislation of both Parties of a prison term of longer than one year; or

b) If the extradition request is aimed at enforcing a sentence or security measure involving deprivation of liberty, at the time of making the request, a period of a least six months of the penalty remains to be served on the part of the person whose extradition is requested.

2. In determining whether an act constitutes an offence under the laws of both Parties in accordance with paragraph 1 of this Article, it shall not matter whether the laws of both Parties place the act within the same category of the offence or denominate the offence by the same terminology.

3. If the extradition request refers to two or more actions, each one of which consititutes an offence under the legislation of both Parties, and at least one of them fulfils the condition of periods of penalties provided for in paragraph 1 of this Article, the Requested Party may grant the extradition for all of them.

Article 3

Mandatory refusal of extradition

Extradition shall be denied if:

a) The Requested Party considers that the offence requested for extradition is an offence bearing political character, however the offence of terrorism shall not be considered political offence.

b) The Requested Party has reason to believe that the extradition request was presented with the aim of prosecuting or punishing the person sought on account of that person’s race, sex, religion, nationality or political opinions, or adversely affecting the position of the person involved in the criminal proceedings for one of these reasons.

c) The offences for which extradition is requested are purely military offences under the law of the Requested Party.

d) The person sought is a national of the Requested Party at the moment when the extradition request is received, or has been granted asylum by the Requested Party.

e) The criminal action or sentence has lapsed by prescription under the law of either of the Parties.

f) The courts of the Requested Party have already passed final judgment or concluded a criminal proceedings against the person sought with regard to the offence for which extradition is requested, or the person sought has been tried in a third State for the offence for which extradition is sought, and has been acquitted or fully served the corresponding sentence.

g) The Extradition request is made as result of a sentence passed in absentia, and the Requesting Party offers no guarantee of the retrial after extradition.

h) The offence for which extradition is punishable by death under the law of the Requesting Party, unless the Requesting Party provides an assurance, considered sufficient by the Requested Party, that the death penalty will not be imposed, or, if imposed, will not be carried out.

Article 4

Discretionary Refusal of Extradition

Extradition may be denied if:

a) The Requested Party has jurisdiction over the offence for which extradition is sought, in accordance with its own national law, and is carrying out or plans to initiate a criminal proceedings against the requested person for this offence.

b) The offence for which extradition is sought was committed outside the territory of both Parties, and the Requesting Party lacks jurisdiction over offence committed outside of its territory under similar circumstances.

c) The Requested Party, although taking into account the gravity of the offence and the interests of the Requesting Party, considers the extradition would be incompatible with humanitarian considerations, in view of the person’s age, health, or any other personal circumstance.

d) If the offence for which extradition is sought can be subject to a life sentence the extradition may be denied if the Requesting Party does not offer assurance, considered sufficient by the Requested Party, that this privation of liberty shall not be indefectibly for life.

e) If the extradition resquest is for a person under eighteen years of age, and said extradition may be detrimental to that person’s social adaptation or rehabilitation.

Article 5

Obligation to Initiate Criminal Proceedings in the Requested Party

If extradition is denied under the provisions of this Treaty, the Requested Party undertakes to submit the case to its competent authorities for the purpose of initiating a criminal proceeding in accordane with its national law.

In this case, the Requesting Party shall provide the Requested Party with the documents and evidence relating to the case through diplomatic channels.

Article 6

Central Authorities

1. To implement this Treaty, the Central Authories are:

a) The Central Authority of the Socialist Republic of Viet Nam is the Ministry of Public Security;

b) The Central Authority of the Kingdom of Spain is the Ministry of Justice.

2. The Parties shall inform the other of changes of their Central Authorities through diplomatic channels.

Article 7

Extradition Request and Required Documents

1. Requests for extradition shall be presented in writing, and should include or be accompanied by:

a) name and address of the requesting authority and the requested authority for extradition;

b) full name, gender and nationality of the person requested for extradition; photograph, physical descripton, fingerprints and if possible, documentation of citizenship and place of residence of the person requested for extradition;

c) a description of the case, with a summary of the criminal acts and their results stating the place and time of commission of the acts;

d) the text of relevant legal provisions regarding the establishment of criminal jurisdiction, dertermination of the offence, and the sentence which could be imposed for the same; and

e) the text of the relevant legal provisions describing the statute of limitations for the prosecution of the criminal act or for the enforcement of the sentence.

2. In addition to the requirements of paragraph 1 of this Article:

a) the extradition request aimed at the criminal prosecution of the person sought should also be accompanied by a copy of the warrant of arrest issued by the competent authority of the Requesting Party; or

b) the extradition request aimed at carring out a sentence imposed on the person sought should also be accompanied by a copy of the court decision and a description of the period of the sentence already served.

3. All documents submitted by the Requesting Party under the provisions of this Treaty shall be certified and sent together with the translation into the language of the Requested Party or English.

4. Documents certified under the provisions of this Treaty are documents signed or identified by the judge or the competent officials of the Requesting Party and the official seal of the competent authorities of the Party.

Article 8

Additional Information

1. If the Requested Party considers that the information provided in support of an extradition request is not sufficient to carry out extradition under this Treaty, that Party may request to be provided with additional information within a period of 30 days. This may be extended another 15 days.

2. In case the requested person for extradition is arrested and the additional information provided under this Treaty is insufficient or not received during the period fixed, the person arrested may be released.

3. In case the person was released from custody pursuant to paragraph 2 of this Article, the Requested Party shall inform the Requesting Party as soon as possible.

Article 9

Provisional Arrest

1. In case of urgency, one Party may ask the other to provisionally arrest the person sought, pending receipt of the extradition request. The request for provisional arrest may be sent in writing through diplomatic channels, or the International Criminal Police Organization (INTERPOL), or any other channel agreed upon by both Parties.

2. The request for provisional arrest shall contain the same details indicated in paragraph 1 of Article 7 of this Treaty, a declaration regarding the existence of the documents indicated in paragraph 2 of the same Article, and a declaration that the extradition request shall be sent without delay.

3. The Requested Party shall promptly inform the Requesting Party regarding the processing of its request.

4. The provisional arrest shall be terminated if, within a period of 40 days beginning from the arrest of the person sought, the competent authority of the Requested Party has not received the formal extradition request. This period may be extended for 15 days, at the duly justified request of the Requesting Party.

5. The release of a person pursuant to paragraph 4 of this Article shall be without prejudice to the extradition of the person sought if the Requested Party subsequently receives the formal extradition request.

Article 10

Decision regarding the Extradition Request

1. The Requested Party shall make a decision regarding the extradition request in accordance with the procedures stipulated in its national legislation, and shall promptly inform the Requesting Party of its decision.

2. If the Requested Party refuses the request totally or partially, it shall inform the Requesting Party of its motives for refusal.

3. Refusal of an extradition on reasonable grounds shall prevent the Requesting Party from presenting a new extradition request against the same person for the same actions.

Article 11

Surrender of Persons

1. If the Requested Party grants the extradition, both Parties shall agree upon the place, time, and any other circumstances regarding execution of the extradition. Meanwhile the Requested Party shall inform the Requesting Party of the period of time during which the person has been under arrest prior to being surrendered.

2. If the Requesting Party fails to collect the person within a perrod of 15 days after the agreed date for executing the extradition, the Requested Party shall immediately release the person and may reject a new extradition request from the Requesting Party referring to the same person and the same acts, unless paragraph 3 of this Article stipulates otherwise.

3. If one of the Parties does not surrender or does not collect the person within the agreed period due to circumstances beyond their control, the other Party shall be notified promptly. The Parties shall once again agree upon the terms for executing the extradion, applying the stipulations in paragraph 2 of this Article.

4. If the surrendered person has avoided the prosecution or service of the sentence in the Requesting Party and returned to the Requested Party, the Requesting Party may present a new request for extradition of that person. The request must be accompanied by the documents specified in Article 7 of this Treaty.

Article 12

Postponement of Surrender and Temporary surrender

1. When the person sought is being proceeded against or is serving a sentence for an offence other than that for which extradition is requested, the Requested Party, after having agreed to grant the extradition, may postpone the surrender of that person until the completion of the proceedings or the service of the whole or part of the sentence imposed. The Requested Party shall inform the Requesting Party of this postponement. When conditions of postponement of the extradition end, the Requested Party must inform the Requesting Party promptly and proceed with the extradition if there is no other notice of the Requesting Party.

2. If the postponement of surrender cited in pharagraph 1 of this Article could lead to exhausting the statute of limitations on the action, or make it difficult for the Requesting Party to investigate the offence, the Requested Party may, to the extent that its laws permit, temporarily surrender the person sought to the Requesting Party, in accordance with the terms and conditions agreed upon by both Parties. The Requesting Party shall promply return that person to the Requested Party upon conclusion of the relevant procedure.

Article 13

Extradition Requests Formulated by Various Countries

1. If the extradition of the same person has been requested by one of the Parties and one or more third countries, the Requested Party shall decide, at its discretion, to which one of them it will surrender the person sought, and shall notify the Requesting Party of its decision.

2. In determing to which country a person is to be extradited, the Requested Party shall have regard to all relevant circumstances and, in particular, to:

a) Nationality or permanent residence of the person sought;

b) Time and place of committing the crime;

c) The seriousness of acts of the offence;

d) The nationality of the victims;

e) Possibility of subsequent extradition to the other requesting country;

f) The date of the extradition request.

Article 14

Principle of Specialty

A person who has been extradited shall not be proceeded against, sentenced or detained nor be subjected to any other restriction to personal liberty for any act or ommission commited prior to that person’s surrender, other than that for which the person was extradited, except in the following cases:

a) the Requested Party has given its prior consent. To this effect, the Requested Party shall demand that the documents and information cited in Article 7 this Treaty be sent, along with a declaration by the extradited person regarding the offences in question;

b) when set free, the extradited person has not left the territory of the Party which he is requested for extradition within a period of 45 days. However, this term does not include the time during which the person has not been able to leave the territory of the Requesting Party due to circumstances arising beyond his or her control; or

c) the person has left the territory of the Requesting Party after extradition and voluntarily returned to that territory.

Article 15

Surrender of Property

1. In accordance with the law of the Requested Party and on the basis of respect for the rights of any third party, any object used in the offence or the proceeds thereof, and any other property that may be found on its territory which could have evidential value shall be surrenderred al the request of the Requesting Party if the extradition is granted.

2. When the extradition is granted, the objects mentioned in the previous paragraph may be surrendered, even if the extradition may be not be carried out due to the death, disappearance, or flight of the person sought.

3. The surrender of such property shall not prejudice any legitimate right of the Requested Party or any third party to that property. Where the right exists, the Requesting Party shall, at the request of the Requested Party, promptly return the surrendered property, at no cost to the Requested Party, after the conclusion of the criminal procedure.

4. The Requested Party may, for the purpose of carrying out another pending criminal procedure, postpone the surrender of the property cited above until the conclusion of the same, or temporarily surrender said property on the condition that they be returned by the Requesting Party, as soon as possible after the conclusion of the criminal procedure.

Article 16

Transit

1. If one of the Parties is to extradite a person from a third country through the territory of the other Party, it shall request transit authonzation. Such authorization shall not be necessary where air transport is used, and no landing in the territory of said Party is scheduled.

2. The Requested Party shall authorize the transit requested by the Requesting Party to the extent that it does not contravene the former’s legislation.

Article 17

Notification of the Outcome

The Requesting Party shall promplty provide the Requested Party with information regarding the proceedings or the enforcement of the sentence against the extradited person, or information regarding the extradition of said person to a third country.

Article 18

Expenses

1. Each Party shall bear the cost derived during the process of implementation of extradition requests arising on its territory, unless otherwise agreed by the Parties.

2. Transport and transit expenses related to the surrender or collection of the extradited person shall be borne by the Requesting Party.

Article 19

Relationship with other Treaties

This Treaty shall not affect the rights and obligations assumed by the Parties in accordance with any other Treaty.

Article 20

Resolution of Disputes

Any dispute which may arise in the interpretation or implementation of the present Treaty shall be resolved through diplomantic consultation.

Article 21

Entry lnto Force and Termination

1. This Treaty shall be ratified by the current legislation of each Party. This Treaty shall enter into force on the first day of the second month afer the exchange of instruments of ratification.

2. This Treaty shall have an indefinite duration.

3. Each of the Parties may terminate this Treaty in the written notification at any time, through diplomatic channels. This termination shall take effect six (06) months after the notification date.

IN WITNESS WHEREOF, the undersigned, duly authorised, have signed this Treaty.

Done at Madrid, this 01 day of October in the year 2014 in two original copies, in the Vietnamese, Spanish and English languages, all texts being equally authentic.