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| titel | bwb_id | type | status | datum_inwerkingtreding | bron | citeertitel |
|---|---|---|---|---|---|---|
| Verdrag tussen het Koninkrijk der Nederlanden en Oekraïne inzake internationale juridische samenwerking met betrekking tot misdrijven die verband houden met het neerhalen van vlucht MH17 van Malaysia Airlines op 17 juli 2014 | BWBV0006683 | verdrag | geldend | 2018-08-28 | https://wetten.overheid.nl/BWBV0006683 | Verdrag tussen het Koninkrijk der Nederlanden en Oekraïne inzake internationale juridische samenwerking met betrekking tot misdrijven die verband houden met het neerhalen van vlucht MH17 van Malaysia Airlines op 17 juli 2014 |
Verdrag tussen het Koninkrijk der Nederlanden en Oekraïne inzake internationale juridische samenwerking met betrekking tot misdrijven die verband houden met het neerhalen van vlucht MH17 van Malaysia Airlines op 17 juli 2014
Deel I. GENERAL PROVISIONS
Artikel 1
For the purpose of this Agreement:
a) a) “Convention on the Transfer of Proceedings” means: the European Convention on the Transfer of Proceedings in Criminal Matters, done at Strasbourg on 15 May 1972 (European Treaty Series No. 73); b) b) “crime” means: any crime connected with the downing of Malaysia Airlines flight MH17 on 17 July 2014; c) c) “judgment”: means a decision or order of a court in the Kingdom of the Netherlands imposing a sentence for a crime; d) d) “sentence”: means any punishment or measure involving deprivation of liberty imposed by a court in the Kingdom of the Netherlands for a crime.
Artikel 2
1. This Agreement serves to regulate matters relating to or arising out of the prosecution and adjudication in the Kingdom of the Netherlands of crimes connected with the downing of Malaysia Airlines flight MH17 on 17 July 2014 in Ukraine.
2. The Parties shall afford one another the widest measure of cooperation in respect of the prosecution and adjudication of these crimes and the enforcement of any sentence rendered for these crimes.
3. This Agreement supplements existing conventions and regulations regarding international cooperation in criminal matters applicable between the Parties.
Artikel 3
1.
For the purpose of the application of this Agreement the competent authorities of the Parties shall communicate through their central authorities, which are:
a) a) for Ukraine: the Prosecutor General’s Office concerning requests during the pre-trial stage and the Ministry of Justice concerning requests during the trial and enforcement of sentence stages; b) b) for the Kingdom of the Netherlands: the Minister of Security and Justice.
2. Requests and answers shall be exchanged by any means which leaves a written record under conditions allowing them to establish their authenticity.
Artikel 4
Any request or documents submitted by either Party in accordance with this Agreement shall be exempt from legalization or other similar formalities.
Deel II. TRANSFER OF CRIMINAL PROCEEDINGS
Artikel 5
1. In addition and without prejudice to existing competence under its own criminal law, the Kingdom of the Netherlands shall have competence to prosecute crimes to which the law of Ukraine is applicable, following a transfer of proceedings in accordance with Article 6 of this Agreement.
2. For the purpose of the application of this Agreement, a transfer of proceedings may be based on the grounds listed in Article 8, paragraph 1, of the Convention on the Transfer of Proceedings, of which subparagraphs (d) and (e) are particularly relevant.
Artikel 6
1. For the purpose of the application of Article 6 of the Convention on the Transfer of Proceedings, the Kingdom of the Netherlands may invite Ukraine to request for a transfer of proceedings.
2. Ukraine shall act upon the invitation expeditiously and in accordance with its national law.
3. No translation of the documents relating to the transfer of criminal proceedings shall be required.
Deel III. EXTRADITION
Artikel 7
In relation to the issues of extradition of persons for crimes the relevant international treaties in force between the Parties shall apply.
Deel IV. USE OF VIDEOCONFERENCE
Artikel 8
1. An accused person who is present in the territory of Ukraine and whose extradition to the Kingdom of the Netherlands has been refused, may stand trial in the Kingdom of the Netherlands via a videoconference link in accordance with this Agreement.
2. Standing trial by videoconference shall only be carried out with the consent of the accused person. The Parties shall make arrangements enabling the competent authority of the Kingdom of the Netherlands to inform the accused person of the consequences of consenting to the use of videoconference and to assure that the accused person expresses his or her consent voluntarily and in full awareness of these consequences. To that end, the accused person shall have the right to be assisted by a legal counsel and by an interpreter. The consent shall be given in writing or otherwise formally recorded and may not be revoked.
3. After the consent, referred to in paragraph 2 of this Article, has been given, standing trial by videoconference shall be considered as proceedings at the hearing of which the accused person was personally present.
4.
The competent authorities of the Parties shall agree the practical arrangements, including the technical means and specifications for the use of videoconference and the persons participating in the hearing by videoconference. When agreeing practical arrangements, the competent authority of Ukraine shall undertake to:
a) a) inform the accused person of the date and place of the hearing by videoconference and, where necessary, arrange for him or her to be present at the hearing by videoconference; b) b) provide the accused person with information, submitted by the Kingdom of the Netherlands, about his or her rights under Dutch law, in such a time as to allow the exercise of his or her rights of defence effectively.
5.
Where a hearing is held by videoconference, the following rules shall apply:
a) a) a judicial authority of Ukraine shall be present during the hearing, where necessary assisted by an interpreter, and shall also be responsible for establishing the identity of the accused person and ensuring respect for the fundamental principles of Ukrainian law. If that authority is of the view that during the hearing the fundamental principles of Ukrainian law are being infringed, it shall immediately take the necessary measures to ensure that the hearing continues in accordance with those principles; b) b) measures for the protection of the accused person shall be agreed, where necessary, between the competent authorities of the Parties; c) c) the hearing shall be conducted directly by or under the direction of the judicial authority of the Kingdom of the Netherlands in accordance with Dutch law; d) d) at the request of the Kingdom of the Netherlands or the accused person, Ukraine shall ensure that the accused person is assisted by an interpreter, if necessary; e) e) accused persons shall be informed in advance of the hearing of the procedural rights which would accrue to them, including the right not to testify, under the law of the Parties.
6. Without prejudice to any measures agreed for the protection of persons, on the conclusion of the hearing, the competent authority of Ukraine shall draw up minutes indicating the date and place of the hearing, the identity of the person heard, the identities and functions of all other persons in Ukraine participating in the hearing, any oaths taken and the technical conditions under which the hearing took place. The document shall be forwarded to the competent authority of the Kingdom of the Netherlands.
Artikel 9
1. If a person is present in the territory of Ukraine and has to be heard as a witness or expert for evidentiary purposes during the pre-trial stage or during trial, the competent authorities of the Kingdom of the Netherlands may request that the hearing take place by videoconference, in accordance with this Agreement.
2.
The competent authorities of the Parties shall agree the practical arrangements, including the technical means and specifications for the use of videoconference and the persons participating in the hearing. When agreeing such arrangements, the competent authority of Ukraine shall undertake to:
a) a) summon the witness or expert concerned, indicating the time and the venue of the hearing; b) b) establish the identity of the person to be heard.
3. Witnesses and experts may claim the right not to testify which would accrue to them under the law of either Party and shall be informed about this right in advance of the hearing.
4. Ukraine shall take the necessary measures to ensure that, where the person is being heard within its territory in accordance with this Agreement and refuses to testify when under an obligation to testify or does not testify the truth, its national law applies in the same way as if the hearing took place in a national procedure.
5. Article 8, paragraphs 5 and 6, of this Agreement shall apply mutatis mutandis.
Artikel 10
The Parties shall ensure that suspects and accused persons have the right of access to legal counsel in such time and in such a manner so as to allow them to exercise their rights of defence practically and effectively. For this purpose, a suspected or accused person present in the territory of Ukraine shall have the right to communicate freely and in confidence with the legal counsel representing him or her in the trial in the Kingdom of the Netherlands, assisted by an interpreter if needed. To this end, a Dutch legal counsel shall enjoy relevant guarantees provided for by Ukrainian law.
Deel V. TRANSFER OF ENFORCEMENT OF SENTENCES
Artikel 11
1. The enforcement of a sentence concerning a person with Ukrainian nationality who is present in the territory of Ukraine shall be transferred in accordance with this Agreement.
2. Without prejudice to Article 14 of this Agreement, the enforcement of the sentence may be transferred only if the judgment is final and enforceable.
3. The consent of the sentenced person, referred to in paragraph 1 of this Article, with the transfer of the enforcement of the sentence shall not be required.
Artikel 12
1.
A request by the competent authority of the Kingdom of the Netherlands for a transfer of the enforcement of the sentence shall include the following information:
a) a) the name, date and place of birth of the sentenced person; b) b) his or her address, if any, in Ukraine; c) c) a statement of facts upon which the sentence was based; d) d) a copy of the relevant provisions of the Criminal Code of the Kingdom of the Netherlands on which the sentence was based; e) e) the nature and duration of the sentence; f) f) information about the limitation period for the enforcement of the sentence; g) g) any other information relevant to the enforcement of the sentence.
2. The competent authority of the Kingdom of the Netherlands shall provide a certified copy of the judgment.
3. The competent authority of Ukraine shall act expeditiously upon the request and in accordance with national law. It shall notify the competent authority of the Kingdom of the Netherlands of its decision.
Artikel 13
When requesting the enforcement of the sentence, the competent authority of the Kingdom of the Netherlands may also request the competent authority of Ukraine to detain the sentenced person or take any other measure to ensure that the sentenced person remains in the territory of Ukraine, pending a decision on the transfer of the enforcement of the sentence. The duration of the sentence shall not be aggravated as a result of any period spent in custody by reason of this provision.
Artikel 14
1. Except as provided in paragraph 2 of this Article, a judgment in absentia means any judgment rendered after criminal proceedings at the hearing of which the accused person was not personally present.
2.
The following shall not be considered as judgments in absentia:
a) a) any judgment rendered after the sentenced person has specifically authorized legal counsel to represent him or her in court, in accordance with the Dutch Code of Criminal Procedure; b) b) any judgment rendered after a hearing of the sentenced person by videoconference, in accordance with Article 8 of this Agreement; c) c) any judgment rendered in absentia on appeal, provided that the appeal from the judgment of the court of first instance was lodged by the person sentenced; d) d) any judgment rendered in absentia against which no appeal has been lodged after the sentenced person has been notified in accordance with paragraph 4 of this Article.
3. A judgment in absentia may, as soon as it has been rendered, be transmitted to Ukraine for the purpose of notification and with a view to enforcement.
4.
Ukraine shall ensure that the person sentenced is personally notified of the judgment in absentia. In the notification the following information provided by the Kingdom of the Netherlands shall be given:
a) a) that a request for enforcement has been presented in accordance with this Agreement; b) b) that the judgment may be appealed in accordance with the Dutch Code of Criminal Procedure; c) c) that the appeal must be lodged with such authority as may be specified; d) d) that, if no appeal is lodged within the prescribed period, the judgment will, for the purpose of this Agreement, be considered as having been rendered after a hearing of the accused.
5. A certificate of the notification, referred to in paragraph 4 of this Article, shall be sent promptly to the authority requesting enforcement.
Artikel 15
1. The enforcement of the sentence in Ukraine shall be carried out in accordance with Ukrainian law.
2. Ukraine shall be bound by the legal nature and duration of the sentence as determined in the judgment. If, however, the sentence is by its duration or nature incompatible with Ukrainian law, the sentence may be adapted to the punishment or measure prescribed by Ukrainian law for similar offences.
3. Where the sentence exceeds the maximum penalty provided for similar offences under Ukrainian law, the adapted sentence shall not be less than the maximum penalty provided for similar offences under Ukrainian law.
4. Where the sentence is incompatible with Ukrainian law in terms of its nature, the adapted sentence shall correspond as closely as possible to the sentence imposed.
5. The adaptation of the sentence shall not aggravate, by its nature or duration, the sentence as determined in the judgment.
6. Any term spent in detention in Ukraine for the crime in respect of which the person was sentenced in the Kingdom of the Netherlands shall be deducted in full from the total duration of the deprivation of liberty to be served, on a day-for-day basis.
7. The enforcement of the sentence in Ukraine shall have the effect of suspending the enforcement of the sentence in the Kingdom of the Netherlands.
Artikel 16
1. Any application for review of the judgment shall be decided by the competent authorities of the Kingdom of the Netherlands.
2. Ukraine shall terminate enforcement of the sentence as soon as it is informed by the Kingdom of the Netherlands of any decision or measure as a result of which the sentence ceases to be enforceable.
3.
The competent authority of Ukraine shall provide information to the competent authority of the Kingdom of the Netherlands concerning the enforcement of the sentence:
a) a) when the enforcement of the sentence has been completed; b) b) if the sentenced person has escaped from custody before enforcement of the sentence has been completed; or c) c) upon request by the competent authority of the Kingdom of the Netherlands.
Deel VI. FINAL PROVISIONS
Artikel 17
Requests and answers and supporting documents communicated under this Agreement shall be made in or translated into the Ukrainian language, unless otherwise agreed by the Parties or provided by this Agreement.
Artikel 18
1.
Ukraine shall cover the costs resulting from the application of this Agreement in its territory, except for the following costs to be covered or refunded by the Kingdom of the Netherlands:
a) a) costs incurred by the attendance of experts in the territory of Ukraine; b) b) costs of establishing and servicing a video link in Ukraine; c) c) costs of interpreters provided by Ukraine; d) d) allowances to witnesses and their travelling expenses in Ukraine.
2. Parties shall consult with a view to making arrangements for the refund of costs of an extraordinary nature.
Artikel 19
In case of any issues arising from the interpretation or application of this Agreement, the Parties shall consult through their central authorities or diplomatic channels, as appropriate.
Artikel 20
1. This Agreement shall enter into force on the date of receipt through diplomatic channels of the last written notification concerning the completion by the Parties of their internal procedures required for this Agreement to enter into force.
2. This Agreement may be amended by mutual written consent of the Parties. Such amendments shall enter into force in accordance with the procedure set out in paragraph 1 of this Article.
3. Either Party may terminate this Agreement by giving written notice through diplomatic channels at any time. The termination shall take effect six months after the date on which such notice is given. Any requests received prior to the date of termination of this Agreement shall continue to be governed by it.
Artikel 21
With respect to the Kingdom of the Netherlands, this Agreement shall apply to the European part of the Netherlands.