Treaty on Mutual Legal Assistance in Criminal Matters between the Socialist Republic of Vietnam and Hungary 2016

TREATY ON

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

The Socialist Republic of Viet Nam and Hungary (hereinafter jointly referred to as “the Parties”);

Desiring to maintain and strengthen the ties between the two States;

Desiring to establish more effective cooperation between the two States in the investigation, prosecution, judicial proceedings in criminal matters and the execution of sentences, especially in the fight against organized crime and terrorism;

Desiring to improve the judicial cooperation in criminal matters between the two States in accordance with their national laws and regulations;

Recalling the Convention on Mutual Legal Assistance in Civil, Family Law and Criminal Matters signed on 18 January 1985 in Hanoi;

Noting that both Viet Nam and Hungary currently apply the terms of that Convention;

Have agreed as follows:

Article 1

Scope of assistance

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

2. Such assistance may consist of:

a) serving documents;

b) summoning witnesses, victims and experts;

c) taking evidence and obtaining statements, also possibly by video conference;

d) the transfer of proceedings in criminal matters;

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

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

g) exchanging information and documents;

h) any other form of assistance consistent with the objects of this Treaty which is not inconsistent with the national law of the Requested Party.

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 national law of the Requested Party and this Treaty;

c) the transfer of sentenced persons in order to serve sentences.

Article 2

Central Authorities

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

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

a) for the Socialist Republic of Viet Nam, the Supreme People’s Procuracy;

b) for Hungary, the Minister responsible for Justice and the Prosecutor General.

3. Either Party shall inform the other on any change of its Central Authority provided in paragraph 2 of this Article through diplomatic channels.

4. For the purposes of this Treaty, the Central Authorities shall directly communicate with each other. Where necessary, the Parties may communicate through diplomatic channels.

Article 3

Content and form of requests

1. The letter of request for assistance shall include:

a) the name and address of the competent authority by which the request is made;

b) the name and address of the competent authority to which the request is sent;

c) information on the identity and residence of the person, the official name and address of the entity or organization or its head office to whom or which the request relates;

d) a description of the assistance sought, the purpose of the request, the nature and relevant facts of the case, indication of the applicable provisions of the national law of the Requesting Party, including the provisions of the statute of limitations and the extract from the criminal law, stipulating responsibility for an offence for which the legal assistance is requested, the status of the case and the time limit within which the request should be executed;

e) in case banking information is requested, the rogatory letters shall expressly state that the banking information provided upon the request shall be used solely for the purposes of the criminal proceedings with regard to the requested legal assistance;

f) in case of a request to trace, search, restrain, freeze, seize or confiscate proceeds and/or instrumentalities of crime, a description of the property and premises requested to be searched, the identity of the person, who holds these items, the grounds to believe that the proceeds and/or instrumentalities of crime are to be found in the Requested Party, and the decision of the competent authority by which the measure was ordered.

2. The letter of request for assistance may include:

a) information on the identity and residence of the witness, victim or expert;

b) in case of a request for obtaining evidence, a description of information, evidence, documents or items to be rendered and, if necessary, a description and identity of the person who is required to render such information, evidence, documents or items;

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

d) measures applicable to the request that would likely result in locating or seizing proceeds and/or instrumentalities of crime;

e) requirements or procedures that the Requesting Party wishes to be followed to facilitate the execution of the request, including forms or manners in which information, evidence, documents or items are to be provided;

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

g) the purpose, intended date and schedule of the visit if competent officer(s) of the Requesting Party wishes to travel to the territory of the Requested Party for the purpose of attending the execution of the request;

h) the criminal judgment or order of a court and other information, evidence, documents or items necessary for the execution of the request.

3. If the Requested Party considers that the information contained in the letter of request is not sufficient to enable the request to be dealt with under this Treaty, it shall request additional information in writing and set a specific time limit within which such additional information should be received.

4. The request shall be made in writing. In urgent cases and permitted by the Requested Party, the Parties may communicate by fax or e-mail, with subsequent transmission of the originals.

5. The letter of request and its 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 English.

Article 4

Refusal or postponement of assistance

1. Assistance under this Treaty shall be refused in any of the following cases:

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

b) the request would prejudice sovereignty, national security or other essential interests of the Requested Party;

c) the request relates to the prosecution of a person for an offence in respect of which that person has been finally convicted, acquitted or pardoned in the Requested Party;

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

e) the request relates to an act or omission that does not constitute an offence under the national law of the Requested Party;

f) the criminal proceedings are related to:

i. an offence which the Requested Party considers to be of political nature; or

ii. a purely military offence which does not constitute an offence under ordinary criminal law.

2. Assistance may be postponed by the Requested Party if the execution of the request would interfere with an ongoing investigation, prosecution, court proceedings or enforcement of a judgment in the territory of the Requested Party.

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

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

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

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

Article 5

Execution of requests

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

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

5. Documents submitted as the execution of the request shall be made in the official language of the Requested Party.

Article 6

Service of documents

1. The Requested Party shall, insofar as its national law permits, serve the documents sent by the Requesting Party.

2. A request for serving a document requiring the attendance of a witness, victim 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 the proof of service of the document. If service cannot be executed, the Requesting Party shall be informed of the reasons.

Article 7

Provision of information and documents

1. The Requested Party shall provide information and copies of documents or records requested through mutual legal assistance in criminal matters.

2. The Requested Party may provide information and the copy of any document or record in the same manner and condition as provided to its national competent authorities.

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

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 for the purposes of the criminal proceedings specified in the request.

Article 9

Search and seizure

The Requested Party shall, insofar as its national law permits, carry out search warrants against persons or premises to search and seize materials, documents or items of evidence that is necessary for a criminal case in the Requesting Party. In this case, the rights of bona fide third parties are respected and protected.

Article 10

Taking evidence and obtaining statements

1. The Requested Party shall, upon request and in compliance with its national law, obtain testimonies or statements of persons or require them to provide evidence in order to transmit those to the Requesting Party.

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

a) the national law of the Requested Party permits or requires that person to decline to give evidence in similar circumstances in domestic criminal procedures in the Requested Party; or

b) the national law of the Requesting Party permits or requires that person to decline to give evidence in similar circumstances in domestic criminal procedures 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 national law of the Requesting Party, the Requesting Party shall, upon request, provide a formal certification on the existence of such a right or obligation to the Requested Party.

4. For the purpose of this Article, the giving or taking of evidence shall include the provision of documents, records or other materials.

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 be, upon the request of the Requesting Party, temporarily transferred to assist in investigations or give evidence in the Requesting Party.

2. The Requested Party shall only 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 agrees to comply with specific conditions required by the Requested Party concerning the custody and safety of the transferred person.

3. Where the Requested Party advises the Requesting Party that the transferred person is no longer required to be held in custody, that person shall be set at liberty and be treated as the person provided in Article 12.

4. The transferred person under this Article shall be kept in custody in the territory of the Requesting Party and 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 the person’s presence is no longer required. The period during which such person was transferred and under custody in the Requesting Party shall be deducted from the period of his/her imprisonment.

Article 12

Requesting other persons to assist in investigations or give evidence in the Requesting Party

1. Upon the request of the Requesting Party, 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 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 the necessary steps to execute the request.

Article 13

Rule of speciality

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

a) shall not be detained, prosecuted, punished or deprived of his/her personal liberty in the Requesting Party, and shall not be subjected to any civil suit if such civil suit cannot be commenced without the person’s presence 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 that person’s consent, give evidence in any criminal procedure or assist in any investigation other than the criminal proceedings 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) consecutive 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 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 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 in its territory, the Requested Party shall take measures as are permitted by its national law to secure or confiscate such proceeds and/or instrumentalities of crime. The Requested Party may, to the extent permitted by its national 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, any rights of the Requested Party and of bona fide third parties are respected and protected.

4. For the purpose of this Treaty, “proceeds of crime” shall mean any assets derived from or obtained, directly or indirectly, through the commission of an offence; and “instrumentalities of crime” shall mean any object that has been used, being used or intended to be used in the commission of an offence.

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 Party through its diplomatic missions or consular officials therein, provided that the national law of the other Party will not be violated and no coercive measures of any kind are taken.

Article 16

Transfer of criminal proceedings

1. Either Party may lay information before the other Party relating to facts that could constitute criminal offences falling within the latter’s jurisdiction so that it can initiate criminal proceedings in its territory.

2. The receiving Party shall notify the transmitting Party of any action taken, and where applicable, the outcome of the criminal proceedings conducted on the basis of such information by transmitting the original final decision or a certified copy thereof.

Article 17

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 national law of the Requested Party and subject to its prior written consent.

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 nevertheless wholly or partly executed.

3. The Requesting Party shall ensure the protection of information or evidence obtained against loss, unlawful access, use, modification and disclosure.

4. Without prior 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 18

Personal data protection

1. Without prejudice to paragraph 2 of this Article, personal data may be gathered and transmitted only if it is necessary and proportionate for the purposes indicated in the request for legal assistance.

2. Personal data transferred to the other Party as a result of the execution of a request made under this Treaty may be used by the Party to which such data have been transferred for the following purposes exclusively:

a) for the purpose of the criminal proceedings in which the legal assistance was requested under this Treaty;

b) for other judicial and administrative proceedings directly related to the proceedings mentioned under subparagraph a) of this paragraph;

c) for preventing an immediate and serious threat to public security.

3. Such data may also be used for any other purpose, if prior consent to that effect has been given by the Party which transferred the personal data.

4. Either Party may refuse to transfer personal data where such data are protected under its national law, and the same level of data protection cannot be provided by the other Party.

5. The Party that transfers personal data may require the other Party to give information on the use made with such data.

6. Personal data transferred under this Treaty shall be processed and deleted in line with the national law of the Party which received such data. Irrespective of these limits, the data transferred shall be deleted as soon as they are no longer required for the purpose for which they were transferred.

7. This Article shall not prejudice the ability of the Party which transmits the personal data to impose additional conditions in a particular case when the request for legal assistance could not be executed in the absence of such conditions. Where additional conditions have been imposed in accordance with this paragraph, the Party to which the personal data have been transmitted shall process the received data according to those conditions.

Article 19

Certification and authentication

1. Without prejudice to paragraph 2 of this Article, a request for assistance, the documents in support thereof, and documents or materials furnished in response to a request, shall not require any form of certification or authentication.

2. Where, in a particular case, the Requested Party or the Requesting Party requests that documents or materials be authenticated, the documents or materials shall be duly authenticated in the manner provided in paragraph 3 of this Article.

3. Documents or materials are authenticated for the purposes of this Treaty if they are signed by an official of a competent authority and are sealed with an official seal of that authority in accordance with the national law of the sending Party.

Article 20

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 Requested Party shall meet the cost of fulfilling the request for assistance except that the Requesting Party shall bear:

a) the expenses associated with conveying any person to or from the territory of the Requested Party and any fees, allowances, expenses payable to that person whilst staying in the territory of the Requesting Party pursuant to a request under Article 11 and Article 12 of this Treaty;

b) the expenses associated with conveying custodial or escorting officers;

c) the expenses associated with experts;

d) the expenses associated with interpreting, translating and transcription of documents and obtaining images of evidence via video conference or other electronic means from the Requested Party to the Requesting Party;

e) the expenses of an extraordinary nature arising during the execution of the request as the Requested Party requires.

Article 21

Compatibility with international treaties

1. This Treaty shall not affect the rights and obligations assumed by each Party in accordance with any other international treaty the Parties are part of and, for Hungary, those assumed as a Member State of the European Union.

2. This Treaty shall not prevent one Party from providing assistance to the other pursuant to other international treaties or agreements to which they are a party.

Article 22

Consultation

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

Article 23

Settlement of disputes

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

Article 24

Final provisions

1. This Treaty shall enter into force on the thirtieth (30) day after receiving the last written notification through diplomatic channels in which the Parties notify each other on the completion of the necessary internal legal procedures for the entry into force of the Treaty.

2. This Treaty shall apply to requests made after its entry into force, even if the relevant acts or omissions occurred prior to that date.

3. This Treaty may be amended and supplemented subject to mutual consent of the Parties. Where the Treaty is amended and supplemented, the amendments and supplements shall become an integral part of this Treaty.

4. Upon the entry into force of this Treaty, Articles 76 - 78 and Articles 96 - 97 of the Convention on Mutual Legal Assistance in Civil, Family Law and Criminal Matters signed on 18 January 1985 in Hanoi shall cease to have any effect; Articles 1 - 18 of that Convention shall not apply to any activities of mutual legal assistance in criminal matters between the Parties.

5. This Treaty will remain in force for an indefinite period.

6. Either Party may terminate this Treaty at any time by notice in writing to the other Party through diplomatic channels. Termination shall take effect six (6) months after the date on which the notice is received.

7. Notwithstanding any termination, this Treaty shall continue to apply to the requests, which have been submitted under this Treaty before the date on which such termination takes effect.

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

DONE at Ha Noi on the 16^th day of March, 2016 in two (2) originals, each in Vietnamese, Hungarian and English languages, all texts being equally authentic. In case of divergence of interpretation, the English text shall prevail.