I. Request for legal assistance
The request for legal assistance must meet certain requirements. It should indicate the names of the institutions involved, name of the case with description and qualification of the offence, nature of the request and all the data necessary for its execution (requisites of persons to be interrogated, scope of the damage etc).
The President's edict to ratification of UNCAC made the MLA request subject to a special condition: it must be served in either Kazakh or Russian languages.
II. Specific acts of assistance
1. Extradition
National law of Kazakhstan allows extradition of foreign citizens (except when the right to asylum has been granted) to a foreign state under the condition of dual criminality. The Constitution forbids the extradition of Kazakh nationals to a foreign state unless it has been agreed upon in a treaty (11 p. 1). The CCP is silent about whether and how a Kazakh citizen can be extradited to a foreign state where she/he committed a criminal offence. It regulates instead the possibility to transfer the investigation and judicial procedure to the Kazakh authorities. The foreign state should send a formal request to the Attorney General or an authorized state attorney. In case of a positive response the prosecution and trial can be continued in Kazakhstan under the Kazakh law (CCP 528 p. 1).
Dual criminality is not [I1] required for other types of MLA under the Kazakh Law.
2. Evidence or statements
Any evidence or statements from persons can be taken upon a formal request of a foreign authority in a regular procedure if the person in question is a Kazakh national and under a special procedure for foreign citizens. The procedure for that is set forth in CCP arts 525 and 526.
3. Service of judicial documents
Service of judicial documents issued by courts or other judicial authorities can be effected upon a formal request according to the procedure set forth in the Provisional Instruction about the Procedure for courts of the Republic of Kazakhstan to carry out legal assistance and to file a request about legal assistance to courts of foreign states (August 23, 2006, N170). Paragraphs 5 to 12 deal specifically with requests of foreign courts about various procedural acts, including service of judicial documents that is mentioned in Par. 8.
4. Searches, seizures and freezing of assets
Searches, seizures and freezing of assets must be requested to the Attorney General.
5. Searches
Searches are to be executed in accordance with CCP 232 upon a grounded request. The State Attorney's approval is required.
CCP article 161 allows freezing and seizure of property to insure its possible confiscation. According to CCP it is subject to a prior authorization of a state attorney. As far as freezing assets on a bank account is concerned, article 51, paragraph 1 of the Law on Banks and Banking Activities in the Republic of Kazakhstan (Bank Law) (August 31, 1995 N2444) prescribes that a formal decision of tax or custom authority is required for the authorization of a state attorney.
The legal framework for confiscation is based on provisions of the Criminal Code (CC) establishing confiscation as a penalty for breaching the anti-corruption and anti-money laundering law. Confiscation is a compulsory deprivation of property in favor of the state (CC Art. 51 Par. 1) and might be applied as a discretionary or mandatory sanction. As far as corruption offences are concerned, confiscation may also be enforced on assets other than property if they were illegally acquired (CC Art. 51 Par. 2). Property and illegally acquired property (proceeds of corruption) must be confiscated to the Kazakh State Budget.
Confiscation of assets on bank accounts can be executed only on the basis of an effective court decision (Bank Law Art. 51 Par. 2).
A foreign confiscation order can be recognized and executed in Kazakhstan if requested under the provisions of the Provisional Instruction mentioned above (Par. 12) by a competent local court.
Kazakh law does not have a system of non conviction based forfeiture. However, its Civil Procedures Code (July 13 1999, N412-I) allows executing, for example, a foreign court order under art.425 if it has been agreed upon in an international treaty or foreseen by Kazakh law. Such decision can be executed within three years after the date of coming into effect (CCivP Art. 425 Par. 3).
In accordance with Kazakh law on criminal or civil procedure, Kazakh authorities are authorized to examine objects and sites, provide information, evidentiary items and expert evaluations as well as documents and records, identify or trace proceeds of crime, property, instrumentalities or other things for evidentiary purposes upon a formal request by a foreign authority, under the provisions of an existing international treaty.
III. Grounds for denial
A request on MLA can be denied in absence of an MLA treaty and reciprocity could be ground for a denial.
As far as an extradition is concerned CCP 532 refers to a list of grounds for denial. These grounds are applicable if a MLA or extradition treaty does not say otherwise.
CC Art. 193 Par. 1 criminalizes the carrying out of any financial transaction or any other legal acts involving illegally gained money or any other property as well as using such property in entrepreneurial or economic activities. Paragraphs 2 and 3 establishes sanctions for qualified forms of money laundering when the offender used her/his official powers and/or if the offence was committed by a public official. Only the third form is considered as a grave criminal offence (maximum 7 years of imprisonment) and confiscation is foreseen for the qualified forms (Par. 2 and 3) and as a discretionary additional sanction.
There is no financial intelligence unit (FIU) yet in the Republic of Kazakhstan, which would function as a central, national agency responsible for receiving, analyzing and disseminating information concerning suspected proceeds of crime and potential financing of terrorism to the competent authorities. Banking Law does not oblige banks to report suspicious transactions. However, there are certain requirements and limitations for the bank operations as far as capital flows abroad are concerned. A special licensing mechanism for transactions in foreign currency is set forth in the Law about Banks and Banking Activities in the Republic of Kazakhstan (Bank Law) (August 31, 1995 N2444), so that the central bank may obtain all information about such transactions and their participants. Besides, banks are required to maintain records about such transactions and to request from their clients all information necessary for the clarification of their nature. They are obliged to inform the National Bank and the law enforcement authorities if they discover any illicit activities. Banking Law of Kazakhstan allows also obtaining information by the law enforcement and inquiry authorities from banks about bank accounts, balances and movement of money on these accounts without being considered as a violation of banking secrecy protected by Bank Law 50.
The establishment of a financial intelligence (monitoring) unit and further measures for a systematic approach to combating money laundering are the next steps prepared by the Kazakh Government and the Draft Law 'On Resisting the Legalization (Laundering) of Crime proceeds and Financing of terrorism' has been submitted to the Parliament for consideration.
V. Treaties and International Agreements for MLA
1. Regional Treaties (Commonwealth of Independent States, CIS)
There are two Conventions on legal assistance and legal relations in matters of civil, family and criminal law with CIS countries: the first one was concluded in Minsk in 1993, and the second in Kishinev in 2002. According to art. 120 of the latter Convention, the Minsk Convention is only applicable between the States-Parties to the Minsk Convention if the Kishinev Convention did not come into force for one of them. These Conventions focus in particular on terms of extradition of criminals.
- The Convention on legal assitance and legal relations in matters of civil, family and criminal law (The Minsk Convention), January 22, 1993 came into force for Kazakhstan on May 19, 1994;
- The Convention on legal assistance and legal relations in matters of civil, family and criminal law (The Kishinev Convention), October 7, 2002 came into force for Kazakhstan on April 27, 2004.
2. Bilateral Agreements
- Agreement on cooperation between the Ministry of Justice of Georgia and the Ministry of Justice of the Republic of Kazakhstan;
- Agreement between the Republic of Kazakhstan and the Korean People Democratic Republic about legal assistance;
- Agreement between the Republic of Kazakhstan and Canada about legal assistance in matters of criminal law;
- Agreement between the Republic of Kazakhstan and the Republic of Uzbekistan about the legal assistance and legal relations in matters if civil, family and criminal law;
- Agreements between the Republic of Kazakhstan and the Turkish Republic about the legal assistance in matters if civil law and about legal assistance in matters criminal law and extradition;
- Agreement between the Republic of Kazakhstan and the Republic of Tukmenistan about the legal assistance and legal relations in matters if civil and family law;
- Agreement between the Republic of Kazakhstan and the Republic of Azerbaijan about the legal assistance and legal relations in matters of tax law (June 10, 1997) with Ministries of Finance as competent authorities.
See website of the Supreme Court for the electronic version of the agreements in Russian language http://www.supcourt.kz/site/SupCourt.nsf/Documents/FFD6457E6855494A462573DA001A0E46?OpenDocument
Kazakhstan joined the 2003 UN Anticorruption Convention and ratified it in May 2008. There are some changes to be expected as a result, in particular, concerning the central body for the international MLA.
Kazakhstan is preparing itself to become a member of the some other major anti-corruption and anti-money laundering international legal frameworks such as:
