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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Any dispute
arising from the interpretation or application of this Treaty shall be settled
by negotiations or diplomatic consultations between the Parties.
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 16th 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.
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