Communication from the Ministry of Foreign Affairs No. 142 / 2024 Coll.

Q: Is Communication from the Ministry of Foreign Affairs No. 142 / 2024 Coll. still valid?

Yes, Communication from the Ministry of Foreign Affairs No. 142 / 2024 Coll. is still valid and effective.

142

COMMUNICATION

Ministry of Foreign Affairs

on the negotiation of a Treaty on mutual legal assistance in criminal matters between the Czech Republic and the Socialist Republic of Vietnam

The Ministry of Foreign Affairs states that on 21 April 2023 the Treaty on Mutual Legal Assistance in Criminal Matters between the Czech Republic and the Socialist Republic of Vietnam was signed in Hanoi.

The Parliament of the Czech Republic agreed to the Treaty and the President of the Republic ratified the Treaty.

Article 30 (1) of the Treaty entered into force on 17 March 2024.

Furthermore, Articles 1 to 14 of the Treaty between the Czechoslovak Socialist Republic and the Socialist Republic of Vietnam on legal aid in civil and criminal matters shall not apply to mutual legal assistance in criminal matters between the Parties, while repealing Articles 58 and 78 thereof.

The Czech version of the Treaty and the English text which is relevant for its interpretation are hereby published simultaneously.

Minister:

z. JUDr. Smolek, Ph.D., LL.M., v. r.

Head of Legal and Consular Section

CONTRACT ON VISUAL LEGAL ASSISTANCE IN THOSE THOSE

INTERI

CZECH REPUBLIC

A

VIETNAM SOCIALISTIC REPUBLIC

THE CZECH REPUBLIC AND THE REPUBLIC OF VIETNAM,

DESIRING to maintain and strengthen mutual relations,

MANAGEMENT OF generally recognised standards of international law,

REAFFIRMING their commitment to respect justice, human rights,

the principles of the rule of law and democracy,

RECALLING the Treaty between the Czechoslovak Socialist Republic

and the Socialist Republic of Vietnam on Legal Assistance in Civil Matters

and criminal, signed on 12 October 1982 in Prague,

NOTING that both the Czech Republic and the Socialist Vietnam

the Republic is currently bound by the provisions of the abovementioned Treaty,

DESIRING to improve and promote more effective cooperation in criminal matters between

in accordance with their national law,

agree as follows:

GENERAL PROVISIONS

SUBJECT MATTER OF THE AGREEMENT

1. The Contracting Parties shall provide each other with the widest possible mutual legal assistance (hereinafter referred to as assistance) in accordance with the provisions of this Treaty and the relevant national law governing criminal proceedings.

2. This Agreement shall not apply to:

(a) extradition;

(b) the transmission of criminal proceedings;

(c) the transfer of sentenced persons for the purposes of the execution of the prison sentence; and

(d) the execution of criminal sentences imposed by the requesting Party on the territory of the requested Party, except to the extent permitted by the legislation of the requested Party and this Treaty.

SCOPE OF THE AID

1. Assistance shall include the types of assistance described in Part II of this Treaty and any other assistance provided under the legislation of both Parties, provided that it does not conflict with this Treaty.

2. Such assistance may include:

(a) service of documents;

(b) the summons of a witness or expert;

(c) the measures and the provision of evidence;

(d) the temporary transfer of a person sentenced by the requested party to the territory of the requesting Party in order to assist in the investigation or supply of evidence;

(e) the adoption of measures to seek, secure or confiscate instruments and proceeds from crime;

(f) exchange of information;

(g) any other form of assistance in accordance with the subject matter of this Treaty which is not contrary to the laws of the requested Party.

DEFINITIONS

For the purposes of this Treaty,

(a) the term "evidence" includes documents, records and other evidence;

(b) the term "property" means all assets of a tangible or intangible nature, movable or immovable, material or non-material, and other legal documents or instruments evidencing a legal title or a holding in those assets;

(c) the term "criminal instruments" refers to any property used, used or intended to be used for the commission of a criminal offence;

(d) the term "proceeds from crime" refers to any property directly or indirectly derived from or obtained from the commission of a criminal offence;

(e) the term "collateral" refers to a temporary prohibition on the transfer, transfer, handling or transfer of property, or its temporary taking into custody or taking control of the property under an order issued by a court or other competent authority;

(f) the term "confiscation," including, where applicable, forfeiture, means the permanent withdrawal of assets on the basis of an order issued by a court or other competent authority.

GENERAL AUTHORITIES

1. Requests for and replies to legal aid shall be sent through central authorities.

2. The following authorities are designated as central authorities for the purposes of this Treaty:

(a) for the Czech Republic, the Supreme Prosecutor for Outgoing Requests for Legal Assistance, originating from prosecutors and incoming requests originating in the preparatory proceedings and the Ministry of Justice of the Czech Republic for Other Requests for Legal Assistance; and

(b) for the Socialist Republic of Vietnam, the Supreme People's Prosecutor.

3. The central authorities shall communicate directly with each other for the purposes of this Treaty. If necessary, central authorities may communicate through diplomatic channels.

4. Each Party may amend its central authority. In such a case, the contact details of the new Central Authority shall be communicated by diplomatic channels to the other Party as well.

FORM AND CONTENTS OF AID REQUESTS

1. The request for assistance shall be made in writing and shall be accompanied by the signature of the representative of the judicial authority submitting it and certified by his official stamp.

2. The request for assistance shall include the following:

(a) the name and address of the competent authority conducting the criminal proceedings for which assistance is requested and the competent authority requesting assistance;

(b) a description of the circumstances of each offence covered by the request for assistance and the text of the applicable provisions of the relevant criminal law of the requesting party, including penalties and limitation provisions;

(c) the stage of criminal proceedings for which assistance is requested;

(d) a description of the assistance and evidence requested and its purpose.

3. To the extent necessary and practicable, the request for assistance shall also include:

(a) the identity of the persons subject to criminal proceedings for whom assistance is sought, the time and place of the offence and the damage caused or may have been caused;

(b) the identity and place of residence of any person from whom the evidence is to be obtained or which is to be delivered, or the place where any wanted object is located, or a description of the place where the inspection is to be carried out and their relationship with the criminal proceedings for which assistance is requested;

(c) a description of any specific procedure to be followed when dealing with a request for assistance;

(d) any request for confidentiality;

(e) in urgent cases, an indication of the period within which the request for assistance should be dealt with and a justification for the urgency;

(f) in the case of service of documents, the manner in which service is to be effected;

(g) a list of the questions to be asked when a person's testimony or statement is requested;

(h) an indication of the persons whose presence in the processing of a request for assistance is requested to admit their role in the criminal proceedings for whom assistance is requested and the purpose of their presence in the processing of the request for assistance;

(i) information relating to the reimbursement of travel and other expenses to which the person who has been summoned to the requesting party is entitled;

(j) information on the right of the person whose testimony or testimony the requested party is requested to obtain, refuse the statement under the national law of the requesting party and the right to immunity, exemption, privilege or incompetence under the law of the requesting party which might be relevant to the processing of the request for assistance;

(k) a precise description of the evidence, property, instruments or proceeds of crime to be secured or confiscated, including their relation to the offence or criminal proceedings for which assistance is sought, indicating the reasons for which such evidence, property, instruments or proceeds of crime may be considered to be present in the territory of the requested Party and the order or judgment of the court or other competent authority concerned by the freezing or confiscation; and

(l) any other information which may facilitate the processing of a request for assistance.

4. If the requested Party does not consider the content of the request for assistance sufficient to deal with it, it may request additional information and may also set a reasonable time limit for the requesting Party to provide it.

5. The request for assistance and any supporting documents relating thereto, including the document to be served, shall be in the language of the requesting Party and shall be accompanied by a translation into the language of the requested Party or the English language.

6. In urgent cases, requests for assistance may be sent by fax or e-mail, with the consent of the requested party. The written original of the request for assistance shall be delivered to the central authority of the requested party within 30 (30) days or within a time limit agreed by the central authorities.

VERIFICATION AND CERTIFICATE

1. Requests for assistance, supporting documents and documents and materials provided in response to the request shall not require any legalisation, certification or verification.

2. Where, in a particular case, the requested Party or the requesting Party requires documents or materials to be verified, such documents shall be authenticated by signature and stamp of the competent authority of the Contracting Party concerned.

REFUSED OR REFUSED

1. The requested Party shall refuse, in whole or in part, assistance if it considers that:

(a) the processing of a request for assistance would be contrary to or contrary to the obligations of the requested Party under international conventions to which it is a party;

(b) processing a request for assistance could jeopardise the sovereignty, security or public policy of the requested Party;

(c) the request for assistance relates to the prosecution of a person for an offence for which that person has already been convicted, acquitted or granted a pardon by the requested party, or for which the person concerned may no longer be prosecuted because of the expiry of the limitation period if the offence was committed in the jurisdiction of the requested party;

(d) the offence in respect of which assistance is sought does not constitute an offence under the law of the requested Party;

(e) the request for assistance concerns a criminal offence of a political nature;

(f) the request for assistance concerns a criminal offence committed by members of the military forces in the framework of their service which does not constitute a criminal offence under the general standards of criminal law;

(g) the request for assistance concerns a criminal offence for which the requesting party may be subject to the death penalty, unless the requesting party provides a guarantee that the requested party considers sufficient that the death penalty will not be imposed or, if imposed, it will not be enforced;

(h) there are serious reasons to believe that assistance has been requested for the purpose of prosecution, punishment or discrimination of a person on grounds of his or her race, religion, sex, nationality, ethnic origin, political belief or for any similar reason, or that the status of that person may be jeopardised for one of those reasons;

(i) there are serious reasons to believe that a request for assistance will result in a person being subjected to torture or other cruel or inhuman or degrading treatment or punishment.

2. Assistance shall not be refused solely for reasons of banking secrecy.

3. The requested Party may postpone the processing of a request for assistance if its processing would be in the way of pending criminal proceedings in the requested Party or if its processing is temporarily impossible in the light of the particular circumstances of the case.

4. The requested Party shall consult the requesting Party before refusing assistance or delaying the processing of a request for assistance in order to consider whether the assistance may be granted under such conditions as it considers necessary. If the requesting Party accepts assistance under these conditions, it shall respect those conditions.

5. If the requested Party refuses or postpones the processing of a request for assistance, it shall inform the requesting Party in writing of the reasons for such refusal or postponement.

PROCEDURE FOR LEGAL AID

1. The requested Party shall handle the request for assistance in accordance with its national law and to the extent not prohibited by the law of the requested Party, in accordance with the instructions given in the request for assistance, where practicable.

2. The requested Party may accept the presence of persons mentioned in the request for assistance in the processing of the request, unless this is contrary to the legislation of the requested Party. To this end, the requested Party shall inform the requesting Party in advance of the date, time and place of the request for assistance; where necessary, the central authorities shall consult each other in order to determine a date which suits both parties.

3. The requested Party shall immediately inform the requesting Party of the outcome of the processing of the request for assistance or of any circumstances likely to result in significant delays in response to the request.

4. Documents transmitted to the requesting party as a result of the processing of the request for assistance shall be drawn up in the language of the requested party.

CONFIDENTIALITY

1. The requested Party may request the confidentiality of the information or evidence provided or the sources of such information or evidence. Such disclosure or use shall be in accordance with the law of the requesting Party and shall be subject to the written consent of the requested Party.

2. The requesting Party may request confidentiality of the content of the request for assistance and supporting documents. If the request cannot be dealt with without breach of confidentiality, the requested Party shall inform the requesting Party before the request is made. The requesting Party shall then determine whether the request is still to be dealt with in whole or in part.

3. The requesting Party shall ensure that the information or evidence provided is protected against loss, unlawful access, use, modification, disclosure or abuse.

RESTRICTIONS ON USE

1. Where the information or evidence is transmitted by the requested Party, the requesting Party shall not use it for purposes other than those indicated in the request for assistance, except where the requested Party has given its prior written consent.

2. No information or evidence provided by the requested Party under this Treaty shall be provided to the requesting Party without the prior written consent of the requested Party.

PROTECTION OF PERSONAL DATA

1. Without prejudice to paragraph 2 of this Article, personal data may be collected and transmitted only where necessary and proportionate for the purposes set out in the request for assistance.

2. Personal data transmitted to the other Contracting Party as a result of the processing of an application made under this Treaty may be used by the Contracting Party which has transmitted such data solely for the following purposes:

(a) for the purposes of criminal proceedings for which assistance under this Treaty has been requested;

(b) for other judicial and administrative proceedings directly related to the proceedings under points (b) and (c). (a) this paragraph;

(c) to avert an imminent serious threat to public policy.

3. Such data may also be used for any other purpose, provided that the Contracting Party which provided the personal data has given its prior consent.

4. Any Contracting Party may refuse to transmit personal data where such data are protected by its national law and the same level of protection may not be provided by the other Contracting Party.

5. A Contracting Party which transfers personal data may, on the other hand, request information on the use of such data.

6. Personal data transmitted under this Treaty shall be processed and deleted in accordance with the national law of the Contracting Party which received such data. Notwithstanding these limits, personal data must be deleted as soon as they are no longer necessary for the purpose for which they were transmitted.

7. This Article shall not affect the possibility of a Contracting Party which transfers personal data to establish additional conditions in a particular case where a request for legal aid cannot be dealt with in the absence of such conditions. Where other conditions have been laid down in accordance with this paragraph, the Contracting Party which has transmitted the personal data shall process the personal data received in accordance with those conditions.

COSTS

1. The requested Party shall bear all costs associated with the processing of the request for assistance in accordance with its national law, unless otherwise agreed by the Central Authorities.

2. Notwithstanding the provisions of paragraph 1, the applicant Party shall bear the following costs unless the central authorities have agreed otherwise:

(a) expert fees;

(b) the costs associated with interpreting, translation and transcription of documents and the measures of evidence by videoconferencing or other electronic means from the requested Party to the requesting Party and the costs associated with the establishment and operation of videoconferencing;

(c) expenditure relating to the travel of any person to and from the territory of the requested Party, and any fees, refunds and expenses to which that person is entitled for as long as he is in the territory of the requesting Party in accordance with the request referred to in Articles 15 and 16 of this Treaty, and the expenditure of escort staff in connection with the transfer of a person;

(d) the cost of securing, storing and transporting evidence, property and instruments or proceeds from crime.

3. If, during the processing of a request for assistance, the requested Party finds that its processing would entail exceptionally high costs, it shall immediately discuss this with the requesting Party.

SPECIES OF AID

_

The requested Party shall, upon request, do whatever is possible under its national law to find in its territory the persons, evidence, property, instruments or proceeds of the crime referred to in the request for assistance which are presumed to be in its territory and shall inform the requesting Party of the outcome. In this respect, the rights of persons acting in good faith will be respected and protected.

CORRECTION OF DOCUMENTS

1. If its national law so permits, the requested Party shall deliver to the persons in the requested Party a document, including a summons or other documents requiring the person to appear at the competent authority in the requesting Party.

2. Where a request for assistance relates to the service of a document requiring a person to appear at the competent authority of the requesting Party, the request shall be served at the latest 90 (90) days before the date on which the person is to appear. In urgent cases, the requested Party may waive this requirement.

3. The requested Party shall send a certificate of service to the requesting Party. Where service cannot be effected, the requesting Party shall be informed of the reasons for which service could not be effected. The requested Party shall inform the requesting Party without delay, at the request of the requesting Party, of the opinion of the person who has been summoned to appear before the competent authority of the requesting Party in accordance with paragraph 1 of this Article, if possible.

TEMPORARY TRANSFER OF THE PERSON CONSIDERED IN THE TERRITORY OF THE COMPETENT PARTIES

1. A person sentenced by a requested party who has been summoned to appear in the territory of the requesting party for assistance in criminal proceedings or for the provision of evidence may, to that end, be temporarily transmitted to the requesting party, at the request of the requesting party, subject to:

(a) that the person agrees to be transferred for the purpose of assisting the investigation or the provision of evidence; and

(b) that the requesting party undertakes in writing to comply with the specific conditions laid down by the requested party concerning the custody and security of the transferred person.

2. For the purposes of this Article:

(a) the requesting Party has the power and obligation to hold the transferred person in custody unless otherwise agreed by the central authorities of the two Contracting Parties;

(b) the person referred to in this Article shall be returned to the requested Party in a manner agreed by the central authorities of the two Contracting Parties as soon as the purpose of the transfer is fulfilled or before the presence of the person concerned is no longer required;

(c) the requesting party will not request the requested party to initiate an extradition procedure or any other procedure for the return of the person transferred;

(d) the time spent by the person in custody with the requesting party shall be counted against the time of execution of the sentence imposed by the requested party.

APPLICATION OF OTHER PERSONS FOR ASSISTANCE WITH CRITICAL MANAGEMENT OR PROVISION OF EVIDENCE TO THE PARTIES

At the request of the requesting Party, the requested Party shall invite any person to volunteer to assist the investigation or to appear in proceedings conducted by the requesting Party and inform the requesting Party of the opinion of that person. This person will also be informed of the safe treatment and the services and compensation provided.

SAFE TREATMENT

1. A person who appears at the competent authority of the requesting Party in accordance with Article 14, 15 or 16 of this Treaty shall not:

(a) detained, prosecuted or punished by the requesting Party for any act or omission which the person concerned should have committed before leaving the territory of the requested Party;

(b) be obliged to provide evidence or assistance in any criminal proceedings other than those referred to in the application.

2. A person who decides not to provide assistance with an investigation or to provide evidence pursuant to Article 14, 15 or 16 of this Treaty shall not be subject to any penalty or enforcement measure by the requesting party or requested party.

3. The guarantee of safe treatment referred to in paragraph 1 shall cease if:

(a) the person is present in the territory of the requesting Party after 15 (15) consecutive days from the date on which he has been officially notified by the competent authority of the requesting Party that his presence is no longer required or from the date on which he did not appear to the competent authority within the specified time limit within which he was to appear, unless that failure was due to reasons beyond his control; or

(b) the person who left the requesting party voluntarily returned to it.

4. The period of 15 (15) days provided for in paragraph 3 (a) shall not include the period for which a person could not leave the territory of the requesting Party for reasons beyond its control.

5. Where the requesting party is aware that the protection referred to in paragraph 1 has ceased to exist in accordance with paragraph 3, the requesting party shall immediately inform the requested party if the requested party requests such information.

6. Safeguard treatment in accordance with paragraph 1 shall be granted to a person temporarily transferred pursuant to Article 15, who shall be held in custody in connection with the criminal offence for which the person carries out the sentence in the requested Party.

7. A person assisting in an investigation or providing evidence as a witness or expert pursuant to Article 14, 15 or 16 shall not be prosecuted for his or her testimony, except for the provision of false statements.

ACCEPTANCE OF CERTIFICATES OR EXEMPTIONS AND EVIDENCE MEASURES

1. Upon request, the requested Party shall affix the testimony or resignation of persons in accordance with its national law. The requested Party shall take the necessary measures to this end. If the information contained in the request is not sufficient to justify such measures under the legislation of the requested Party, the requested Party shall inform the requesting Party of the requirements resulting from its legislation for the application of such measures and invite the requesting Party to send additional information in accordance with Article 5 (4).

2. The person to be heard shall have the right to refuse the statement in accordance with the national law of either Party. Where a person located in the territory of the requested Party claims that under the national law of the requesting Party he has the right or obligation to refuse the statement, the central authorities of the Contracting Parties may consult to verify the existence of such a right or obligation under the national law of the requesting Party.

3. Upon request, the requested Party shall obtain, in accordance with its national law, evidence identified by the person testifying or making the statement and shall transmit it to the requesting Party.

RESULTS FOR THE USE OF VIDEO CONFERENCE

1. Where a person is located in the territory of the requested Party and is to be heard by the competent authority of the requesting Party, the requested Party may allow the competent authorities of the requesting Party to interview or denounce him, using videoconferencing, if such questioning is necessary for criminal proceedings in the requesting Party. The central authorities shall consult with a view to facilitating the resolution of legal, technical or logistical problems which may arise in the handling of the request for assistance.

2. The requested Party may also authorise the use of videoconferencing for other purposes, including the recovery of persons or evidence and confrontations.

Citation	Communication from the Ministry of Foreign Affairs No. 142 / 2024 Coll., on the negotiation of the Treaty on Mutual Legal Assistance in Criminal Matters between the Czech Republic and the Socialist Republic of Vietnam
Regulation Type	International Treaty
Author	-
Collection	Code of Laws

Date of Promulgation	11.06.2024
Effective from	17.03.2024
Effective until	-
Status	Valid

Communication from the Ministry of Foreign Affairs on the Agreement on Mutual Legal Assistance in Criminal Matters between the Czech Republic and the Socialist Republic of Vietnam

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