CHAPTER FORTY SIX
TRANSFER OF GUILTY PERSON FOR PURPOSES OF CHARGING WITH CRIMINAL RESPONSIBILITIES AND ENFORCING DECREE OF SENTENCING
Article 404. Request to Transfer Citizen of Mongolia
404.1. Request to transfer a citizen of Mongolia who has left for a foreign country after committing a crime on the territory of Mongolia shall be made before an authorized organization of the foreign country according to rules provided by law and international agreements.
404.2. The request shall specify following:
404.2.1. his/her name, parents names and family name, his/her date of birth;
404.2.2. country of citizenship, description and a photo;
404.2.3. short summary of the crimes committed by the person, provision of law applicable, sentence imposed by court if convicted;
404.2.4. date of decree on conviction or on charge as accused;
404.2.5. certified copies of documents attached to the request.
Article 405. Implementing the Requirement to Transfer Foreign Citizen
405.1. Request made by an authorized organization of a foreign country to transfer a foreign citizen, or stateless person who has committed a crime or has been sentenced on the territory of the foreign country shall be implemented according to rules provided by law and international agreements.
405.2. If the person described by Article 405.1. of this Law and to be transferred is serving an
imprisonment sentence on the territory of Mongolia the transfer may be postponed until the person finishes serving the sentence or is released from serving the sentence.
405.3. If such postponement of the transfer allows the time limit for prosecuting the crime to be expired or hinders investigation of the crime, the person may be transferred.
Article 406. Refusal to Transfer
406.1. In following occasions a transfer of a criminal shall not take place:
406.1.1. if the person is a citizen of Mongolia;
406.1.2. if the criminal has been awarded asylum in Mongolia;
406.1.3. if the grounds for the request to transfer are not considered to be a crime in Mongolia;
406.1.4. if the statute of limitation for the particular crime has been expired according to legislation of Mongolia or there are circumstances based on other grounds excluding initiating of criminal case or sentencing.
Article 407. Transfer of a Person with Dual Citizenship or Stateless Person
407.1. Transfer of a person with dual citizenship or stateless person shall be resolved as provided by this Law.
Article 408. Confinement Under Guard for the Purpose of Transfer
408.1. If there is ground for satisfaction of the request of authorized organization of foreign country and for transfer of a criminal, he/she shall be arrested and confined under guard until the transfer and the requesting organization shall be informed immediately on date and place of the transfer.
408.2. If the person confined under guard as provided by Article 408.1. of this Law is not received
within 30 days, he/she shall be released by an decree of procurator.
408.3. The person released as provided by Article 408.2. of this Law may be again confined under guard if new request has been made.
Article 409. Transfer of Property and Other Evidence
409.1. In transferring a foreign citizen or stateless person to a foreign country according to rules
provided by this Law, the tools and other items used in perpetrating of crime and other property bearing signs of the crime or obtained through criminal activities and other necessary evidence shall be transferred.
409.2. If the evidence described in Article 409.1. of this Law is required for resolution of other cases it may be refused to transfer it.
409.3. The property described in Article 409.1. of this Law shall be transferred when the relevant
organization of foreign country issues a guarantee to return the property upon resolution of the case.
CHAPTER FORTY SEVEN
TRANSFERRING A PERSON SENTENCED TO IMPRISONMENT TO THE COUNTRY OF HIS/HER JURISDICTION
Article 410. Grounds for Transferring Convict Sentenced to Imprisonment to Country of His/Her Jurisdiction
410.1. Issues of transferring a convict sentenced to imprisonment by a court of Mongolia to the country of his/her jurisdiction or transferring a citizen of Mongolia sentenced to imprisonment by a foreign court to Mongolia shall be resolved according to conditions and rules provided by international agreements of Mongolia established with the respective country.
410.2. Decision on transferring a person sentenced to imprisonment by a court of Mongolia to the
country of his/her jurisdiction shall be made by the Procurator General of Mongolia and this shall be informed to the court that has issued the sentence and the court decision enforcement agency if not provided otherwise by law or international agreement of Mongolia.
Article 411. Refusing to Transfer Convict Sentenced to Imprisonment to Country of His/Her Jurisdiction
411.1. In following occasions it may be refused to transfer a person sentenced to imprisonment by a court of Mongolia to his/her country of jurisdiction:
411.1.1. if no action, for which the person has been sentenced, is considered to be a crime by legislation of the person's country of jurisdiction;
411.1.2. if it is not possible to enforce the sentence in the country of jurisdiction due to fact that time limit for prosecuting the crime has expired by legislation of the person's country of jurisdiction or for
411.1.3. if the convict or the country that has requested to transfer has not implemented a provision of the decree with respect to civil claim or has not submitted such a guarantee;
411.1.4. if agreement has not been reached on transferring the convict based on conditions provided by international agreements;
411.1.5. if the convict was a permanent resident in Mongolia.
Article 412. Reviewing and Resolving a Request to Transfer a Mongolian Citizen for Purposes of Enforcing a Sentence
412.1. If not otherwise provided by law or international agreement of Mongolia, a citizen of Mongolia sentenced to imprisonment by a foreign court shall be presented to the Procurator General of Mongolia by the convict, his/her lawful representative or relatives, or with the permission of the convict by the diplomatic representative of Mongolia residing in the respective country or by an authorized organization of the country.
412.2. The Procurator General of Mongolia shall review the request and decide whether to satisfy the request or not.
412.3. If the Procurator General of Mongolia has satisfied the request the convict shall be transferred according to agreements established with the respective country.
Article 413. Procedures for Resolving Through Courts the Issue Related with Implementing Decrees of Foreign Courts
413.1. A judge of soum or district court by issuing an order shall resolve the issue of serving a sentence in Mongolia by a person transferred as provided in Article 418 of this Law, based on the submission of the Procurator General and according to jurisdiction established by the Chief Justice of Supreme Court.
413.2. An order of judge shall contain following provisions:
413.2.1. name of the foreign court, place and date of issuing the decree;
413.2.2. place of last residence or last employment in Mongolia;
413.2.3. the crime committed by the convict and articles, paragraphs and provisions of law applied by the foreign court on him;
413.2.4. articles, paragraphs and provisions of Criminal Law of Mongolia to be applied on the actions of the convict.
413.2.5. Term of sentence imposed by the foreign court on the convict, type of prison unit, term to be served in Mongolia, type of prison unit and procedures for compensating damages.
413.3. If the term of sentence imposed by the foreign court is greater than the maximum term to be imposed by Criminal Law on the particular crime, the term to be served in Mongolia shall be established as equal to the maximum term to be imposed by Criminal Law on the particular crime.
413.4. If, according to law of Mongolia, it is not allowable to impose imprisonment sentence on the
crime, despite the fact that an imprisonment sentence has been imposed by a foreign court, court shall resolve this by imposing other type of sentence analogous to that of foreign court in type and term.
413.5. If, despite the fact that an convict was sentenced by a foreign court for committing several
crimes, but according to law of Mongolia, the crimes are not considered to be crimes, court shall terminate the case and release the convict from criminal responsibilities and convictions.
413.6. An order of judge shall enter into force from the moment of issuance and a procurator may
protest the order.
413.7. An order of judge shall be delivered to a procurator for enforcement.
413.8. All issues of enforcing court decisions such early release, replacement of a sentence with lighter sentence, giving amnesty or pardoning of a sentence for a person who is transferred from abroad to serve the sentence in Mongolia as provided in this Article shall be regulated by law and legislation of Mongolia.
413.9. If an amnesty law is adopted in a foreign country, the law shall be applicable to a person who has been sentenced there and transferred and a decision to such effect shall be made by a judge of court of the first instance in jurisdiction of which the sentence enforcement unit is located.
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:
(a) The identification and whereabouts of persons or the location of items;
(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(f) The temporary transfer of persons as provided in paragraph 7;
(g) The examination of places or sites, including the exhumation and examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including official records and documents;
(j) The protection of victims and witnesses and the preservation of evidence;
(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.
2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.
3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.
5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.
6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.
(a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.
(a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.
(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.
(i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.
(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.
(a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.
(i) The assistance provided under subparagraph (a) shall include, inter alia:
a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and
b. The questioning of any person detained by order of the Court;
(ii) In the case of assistance under subparagraph (b) (i) a:
a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State;
b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68.
(c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.
1. A request for other forms of assistance referred to in article 93 shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a).
2. The request shall, as applicable, contain or be supported by the following:
(a) A concise statement of the purpose of the request and the assistance sought, including the legal basis and the grounds for the request;
(b) As much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided;
(c) A concise statement of the essential facts underlying the request;
(d) The reasons for and details of any procedure or requirement to be followed;
(e) Such information as may be required under the law of the requested State in order to execute the request; and
(f) Any other information relevant in order for the assistance sought to be provided.
3. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.
4. The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court.