Legal Assistance Agreements In Criminal Matters (Colombia) - Full Text Of The Norm

Original Language Title: ACUERDOS ASISTENCIA JUDICIAL EN MATERIA PENAL (COLOMBIA) - Texto completo de la norma

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image inicio sitio infoleg MInisterio de Justicia y Derechos Humanos
ACUERDOS Ley 25.348 Apr├ębase un Acuerdo de Asistencia Judicial en Materia Penal subscribeo con la Rep├║blica de Colombia.

Sanctioned: November 1, 2000

Cast: November 29, 2000

The Senate and Chamber of Deputies of the Argentine Nation assembled in Congress, etc., sanction with force of Law:

ARTICLE 1 Approve the Agreement on Judicial Assistance in Criminal Matters between the Argentine Republic and the Republic of Colombia, signed in Buenos Aires on 3 April 1997, which consists of twenty-seven articles, whose authenticated photocopy is part of this law.

ARTICLE 2 Contact the National Executive.

IN THE SESSION OF THE ARGENTINE CONGRESS, IN GOOD AIRES, THE FIRST DAY OF THE MONTH OF NOVEMBER OF THE YEAR DOS MIL.

# 25,348 EL

PASCUAL RAFAEL. . MARIO A. LOSADA. . Guillermo Aramburu. . Alejandro L. Colombo.

AGREEMENT OF JUDICIAL ASSISTANCE IN THE CRIMINAL REPUBLIC AND THE REPUBLIC OF COLOMBIA

The Governments of the Argentine Republic and the Republic of Colombia,

ANNEXED for the purpose of enhancing judicial assistance and cooperation in criminal matters;

RECOGNIZING that the fight against crime requires joint action by States;

CONSIDERING the bonds of friendship and cooperation that bind them;

EN OBSERVANCE with the constitutional, legal and administrative rules of their States, as well as respect for the principles of international law;

RECALLING respect for national sovereignty and equal rights and mutual interests;

Agreed to the need to develop joint actions for the prevention, control and suppression of crime in all its forms, through the coordination and implementation of specific programmes and to expedite traditional legal and judicial assistance mechanisms;

CONSCIENTS that the increase in criminal activities requires the strengthening of legal and judicial cooperation and assistance mechanisms in criminal matters.

ACUERDAN:

ARTICLE 1

APPLICATION

The Parties are obliged to provide mutual assistance, in accordance with the provisions of this Agreement and their respective legal systems, in the conduct of criminal investigations and procedures initiated by facts whose knowledge corresponds to the competent authorities of the Requiring Party.

Assistance shall be provided even if the facts for which it is requested do not constitute an offence under the laws of the Required Party.

However, where the request for assistance relates to the execution of a forfeiture, provisional or precautionary measures, house searches, telecommunications interception and correspondence or judicial inspections, assistance shall be granted only if the act requesting it was also considered an offence under the law of the Required Party.

ARTICLE 2

DEFINITIONS

1. For the purposes of this Agreement:

(a) "Chart rogatory, appeal or request for judicial assistance" shall be understood as synonyms.

(b) "Forfeiture": means the definitive deprivation of property products or instruments of crime, by decision of a court or other competent authority.

(c) "Instruments of the crime" means any good used or intended to be used for the commission of a crime.

(d) "Product of crime": means goods of any kind, derivatives or obtained directly or indirectly, by any person, from the commission of a crime or the equivalent value of such property.

e) "Goods": means assets of any kind, body or incorporated, furniture or immovable, tangible or intangible and documents or legal instruments that credit the property or other rights to such assets.

(f) "Preventive, Kidnapping or Property Seizure": means the temporary ban on the transfer, conversion, disposal or mobilization of property, as well as the temporary custody or control of property by order issued by a court or by a competent authority.

ARTICLE 3

ASSISTANCE

1. Parties shall provide mutual assistance in the exchange of information, evidence, prosecutions and criminal proceedings. Such assistance shall include:

(a) Location and identification of persons and property;

(b) Notification of judicial acts;

(c) Referral of documents and judicial information;

(d) Execution of house searches and judicial inspections;

(e) Receipt of testimony and interrogation of accused persons;

(f) Voluntary recruitment and transfer of persons for the purposes of this Agreement, as accused persons, witnesses or experts;

(g) Transfer of detained persons to testify in the territory of the Requiring Party;

(h) Recruitment, abduction and confiscation of property;

(i) Any other form of assistance, provided that the law of the Requiring Party permits it and in accordance with Article 9 of this Agreement.

2. The Parties shall facilitate the entry and presence in the territory of the requested State of competent authorities of the Requiring Party in order to assist and participate in the practice of the requested proceedings, provided that this does not contravene the provisions of their domestic legislation. The officials of the Requiring Party shall act in accordance with the authorization of the competent authorities of the Requiring Party.

ARTICLE 4

LIMITATIONS IN THE ASSISTANCE

1. The Requiring Party shall not use any information or evidence obtained by this Agreement for purposes other than those stated in the request for judicial assistance, without prior authorization from the Requiring Party.

2. This Agreement shall not empower the Parties to execute, in the territory of the State where the proceedings are carried out, functions reserved exclusively to the authorities of that State in accordance with its domestic legislation.

3. This Agreement shall not apply to:

(a) Detention of persons in order to be extradited, or extradition requests;

(b) The transfer of convicted persons for the purpose of serving criminal sentences;

(c) Assistance to individuals or third States.

ARTICLE 5

CENTRAL AUTHORITIES

1. Requests for assistance under this Agreement, as well as its responses, shall be sent and received through the central authorities, as indicated in the following statement:

a. For the Argentine side, the central authority will be the Ministry of Foreign Affairs, International Trade and Worship.

b. With regard to requests for assistance received by Colombia, the central authority will be the Office of the Attorney General of the Nation; with regard to requests for judicial assistance submitted by Colombia, the central authority will be the Attorney General of the Nation or the Ministry of Justice and the Law.

2. To this end, the central authorities will communicate directly among them and forward the requests, as appropriate, to their competent authorities.

ARTICLE 6

COMPETENT AUTHORITIES

The Competent Authorities are, in the Argentine Republic, the judicial authorities and the Public Prosecutor's Office and in the Republic of Colombia, the judicial authorities.

ARTICLE 7

APPLICABLE LAW

(a) Applications shall be complied with in accordance with the law of the Requiring Party, unless otherwise provided in this Agreement.

(b) The complaining Party shall provide judicial assistance in accordance with the special forms and procedures set out in the request of the Requiring Party, except where they are incompatible with its domestic law.

ARTICLE 8

CONFIDENCELITY

1. The complaining Party shall keep the request for judicial assistance in reserve, unless its lifting is necessary to implement the requirement.

2. If the lifting of the reservation is necessary for the fulfillment or execution of the requirement, the Requiring Party shall request its approval by written communication, without which the request shall not be executed.

3. The Requiring Party shall maintain the reservation of the evidence and information provided by the Requiring Party, unless its lifting is necessary for the investigation or procedures described in the request.

ARTICLE 9

JUDICIAL ASSISTANCE

1. The request for judicial assistance should be made in writing. Under circumstances of an urgent nature or in the case permitted by the complaining Party, requests may be made through a fax or any other electronic means, but shall be formalized as soon as possible and shall contain at least the following information:

(a) Name of the competent authority responsible for the investigation or judicial procedure;

(b) Purpose of the request and description of the requested assistance;

(c) Description of the facts constituting the offence subject to the request for judicial assistance, attaching or transcribing, in respect of the offences, the text of the relevant legal provisions;

(d) Detail and basis of any special procedure that the Requiring Party wishes to practice;

(e) The term within which the Requiring Party wishes the application to be fulfilled;

(f) If the case is the case, the identity, nationality and residence or domicile of the person to be summoned or notified, and the relationship that such person has with the investigation or process;

If the case is the case, the identity, nationality and residence or residence of the person who is cited for the execution of evidence.

ARTICLE 10

ASSISTANCE CONDITIONED

1. The competent authority of the Required Party, if it determines that the execution of a request shall impede any criminal investigation or procedure being carried out in that State, may defer its compliance or condition it in the manner it deems necessary.

2. The Central Authority of the Requiring Party shall inform the Central Authority of the Requiring Party of the above paragraph, so that it accepts the conditioned assistance in which case it shall be subject to the conditions established.

3. Where a request for judicial assistance could not be fulfilled in whole or in part, the Requiring Party shall notify the Requiring Party by expressly stating the reasons or causes of non-compliance, in which the Requiring Party shall decide whether to insist on the request or to withdraw from it.

ARTICLE 11

RECHAZO DE LA SOLICITUD

1. The Required Party may refuse assistance when:

(a) The request for judicial assistance is contrary to its legal order or not in conformity with the provisions of this Agreement;

(b) Consider that compliance with the request may impede an ongoing criminal investigation or prosecution in that State, except as provided for in Article 10 of this Agreement;

(c) The request for judicial assistance relates to an offence in respect of which the person has been permanently exonerated or sentenced to criminal liability, the penalty has been completed or extinguished;

(d) The investigation has been initiated in order to prosecute or discriminate in any way to a person or group of persons for reasons of race, sex, social status, nationality, religion, ideology or any other form of discrimination;

(e) The granting of assistance may affect public order, sovereignty, national security or the fundamental public interests of the requested State;

(f) The request for judicial assistance relates to a political, military or related offence.

2. The Requiring Party shall inform the Requiring Party in writing of refusal of assistance.

ARTICLE 12

IMPLEMENTATION OF THE REQUEST FOR JUDICIAL ASSISTANCE

1. The Required Party shall set the date and place of application for judicial assistance and shall communicate them in writing at the request of the Requiring Party.

2. Evidence carried out by the competent authorities of the Required Party shall be carried out in accordance with its legal system. The assessment of such evidence shall be governed by the domestic order of the Requiring Party.

3. The Requiring Party in accordance with its domestic legislation and, at the request of the Requiring Party, may receive testimony from persons for a process or investigation that is followed in the Requiring State. the Requiring Party may request the execution of the necessary evidence in accordance with the procedures specified in the request.

4. The interrogation shall be submitted in writing and the complaining party, after evaluating it, shall decide whether or not to proceed.

5. The Requiring Party may, at the request of the Requiring Party, provide for evidentiary purposes, copies of official or private documents, background or information that they possess in a governmental or private agency or unit of that Party, provided that its domestic legislation permits it.

6. Evidence performed by the competent authorities of the Requiring Party, in originals or authenticated copies, shall be forwarded to the Requiring Party through the Central Authority.

7. Documents or objects that have been sent in pursuance of a request for judicial assistance shall be returned as soon as possible by the competent authority of the Requiring Party, unless the Requiring Party waives them.

ARTICLE 13

TO THE REQUIREMENT PART

1. The request for judicial assistance sent to the competent authorities of the Requiring Party, which is aimed at summoning an accused, witness or expert to the competent authorities of the Requiring Party, shall be transmitted by the Central Authority of the Requiring Party at least 45 days prior to the date set for the execution of the request.

In the event of a contract, the Central Requiring Authority will return it to the Requiring Party. However, the Central Authority of the Requiring Party may request in writing the extension of the term to the Requiring Party.

2. The competent authority of the Requiring Party shall proceed to make the summons as requested, but without the effect of the conmining clauses or penalties provided for in the Requiring Party ' s legislation for the event of non-appearance.

3. The request for judicial assistance should mention the amount of the vials, diets and compensation that the person cited for transfer

ARTICLE 14

GARANTIA TEMPORAL

1. A witness or expert who, as a result of a summons, shall appear before the competent authority of the Requiring Party, shall not be prosecuted or detained for acts or convictions prior to his departure from the territory of the Requiring Party.

2. A person, regardless of nationality, expressing his or her written consent to appear before the competent authorities of the Requiring Party in order to respond to acts that are the subject of a trial against him, may not be prosecuted, detained or subject to any other restriction of his or her personal liberty for acts or convictions prior to his departure from the territory of the Required Party, other than those specified in such summons.

3. The temporary guarantee provided for in the preceding paragraphs shall cease in its effect when the person appearing has not left the territory of the Requiring Party, having had the possibility to do so, within 10 days of being notified by the competent authorities that his presence is no longer necessary or has abandoned him, shall return to the same, except in circumstances of force majeure or fortuitous case.

ARTICLE 15

OF THE DETENTION

1.

(a) When the summons to testify before the competent authority of the Requiring Party relates to a person detained in the territory of the Requiring Party, access to the request shall be essential for the detainee to give his or her consent in writing.

(b) The competent authority of the Requiring Party shall be obliged to keep the person transferred in custody and to return it in the same conditions as soon as it has ceased the need that prompted the transfer request, unless the competent authority of the Requiring Party expressly and in writing requests that such person be released.

(c) The costs incurred by the application of this article shall be borne by the Requiring Party.

2. In all cases, the decision on the transfer under paragraph 1 of this article shall be discretionary to the competent authority of the complaining Party and the refusal may be based, inter alia, on reasons of convenience or security.

ARTICLE 16

PRODUCTS OF THE

1. The competent authorities of the Required Party, upon request for judicial assistance, shall endeavour to find out whether any proceeds or instruments of an offence are within their jurisdiction and shall notify the results or inquiries to the competent authorities of the Requiring Party through the Central Authorities. In making the request, the Requiring Party shall notify the Requiring Party of its belief that such products or instruments of the offence may be found in its jurisdiction.

2. Where the products or instruments of the offence subject to the request for judicial assistance are found in paragraph 1, the Requiring Party shall, at the request of the Requiring Party, take the necessary measures permitted by its laws to avoid any transaction, transfer or disposal of the same while a final decision on such products or instruments is pending.

3. Where the person convicted of an offence has disposed of the proceeds or instruments thereof, the competent authority of the Requiring Party, at the request of the competent authority of the Requiring Party, shall determine whether the third party obtained them without knowing or suspecting that the proceeds or instruments of the offence were impeded or could have been treated. If the competent authority of the Required Party determines that the third party did not act in good faith, it shall order the confiscation of the property.

ARTICLE 17

PROVISIONS OR CAUTELARES

1. Without prejudice to the provisions of article 1 and in accordance with the provisions of this article, the competent authority of one of the Parties may request the other to obtain an order for the purpose of pre-trial shipment, sequestration or seizure of assets to ensure that they are available for the execution of a confiscation order.

2. A requirement under this article shall include:

(a) A copy of the precautionary arrest, abduction or seizure order;

(b) A summary of the facts of the case, including a description of the crime, where and when it was committed and a reference to the relevant legal provisions;

(c) If possible, a description of the property, its commercial value for which the interim or precautionary measure is intended, or which is considered to be available for the preventive embargo, abduction or seizure and their relationship with the person against whom a judicial procedure was initiated or initiated;

(d) A statement of the amount intended to be seized, abducted or seized and of the basis of the calculation thereof;

(e) The estimate of the time that will take place before the case is transmitted to trial and the time that will pass until the final court decision is issued.

3. The competent authority of the Requiring Party shall inform the competent authority of the Requiring Party of any modification within the time frame referred to in the preceding paragraph (e) and in so doing shall indicate the stage of procedure that has been reached.

4. The competent authorities of each Party shall promptly report on the exercise of any remedy or a decision taken on the requested or adopted embargo, abduction or seizure.

5. The competent authority of the Requiring Party may impose a condition that limits the duration of the requested measure, which shall be promptly notified to the competent authority of the Requiring Party, explaining its motivation.

6. Any requirement shall be executed only in accordance with the domestic legislation of the complaining Party and in particular in observance and guarantee of the rights of any person who may be affected by the enforcement of the measure.

ARTICLE 18

IMPLEMENTATION OF DECOMISO ORDENES

1. In the event that the request for assistance relates to a forfeiture order, the competent authority of the complaining Party may, without prejudice to the provisions of article 1:

(a) Execute the confiscation order issued by a competent authority of the Requiring Party concerning the instruments or products of the offence; or

(b) Initiate a procedure in order to obtain a confiscation order, in accordance with its domestic legislation.

2. Without prejudice to Article 9 of this Agreement, for the purposes of this Article, the following shall be included:

(a) A copy of the confiscation order, duly certified by the judicial officer who issued it;

(b) Information on evidence supporting the basis on which the confiscation order was issued;

(c) Information indicating that the judgement is properly enforceable;

(d) Where appropriate the identification of assets available for enforcement or property for which judicial assistance is sought, declaring the relationship between such assets and the person against whom the confiscation order was issued;

(e) Where appropriate and known, information on the existence of backgrounds related to the rights or legitimate interests of third parties on the property subject to the requirement;

(f) Any other information that may assist in the implementation of the request for judicial assistance.

3. Where the domestic legislation of the complaining Party does not permit the execution of a request as a whole, the application may be complied with to the extent possible and communicated through the Central Authority.

4. The competent authority of the complaining Party may request additional information or evidence in order to carry out the request.

5. The confiscation order shall be carried out in accordance with the domestic legislation of the Required Party and, in particular, in observance of the rights of any person who may be affected by its enforcement.

6. In each case, the Requiring Party may agree with the Requiring Party on how to share the value of the assets obtained as a result of the enforcement of the requirement by the Requiring Party pursuant to this article, taking into account the guidelines set out in article 5.5 (b) (ii) of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 and taking into account the amount of the information supplied by the Party. In order to comply with this paragraph, the Parties may conclude supplementary agreements.

ARTICLE 19

BIENES OF GOOD FEATURES

In accordance with the provisions of this Agreement, the competent authorities of the Requerida Party shall, in accordance with its law, take the necessary measures to protect the interests and rights of third parties in good faith on property affected by the execution of requests for judicial assistance.

Any person affected by a preventive arrest, abduction, seizure or confiscation order may lodge the remedies provided for in the domestic legislation of the complaining Party before the competent authority of that Party.

ARTICLE 20

EXPENDITURE

1. Regular costs incurred in the implementation of a request for judicial assistance shall be borne by the Required Party. Where extraordinary expenses are required for this purpose, the Parties shall consult to determine the terms and conditions in which the requirements will be met, as well as the manner in which the costs will be met.

2. The fees of experts, travel expenses, accommodation or other expenses of the accused, witnesses or experts to be transferred under a request for judicial assistance, including those of the staff accompanying him, shall be borne by the Requesting Party.

ARTICLE 21

COMMUNICATION OF CONDENAS

Each Central Authority shall report to the other on an annual basis the sentences handed down by its judicial authorities against nationals of the other Party.

ARTICLE 22

BACKGROUND

1. Each Central Authority shall communicate at the request of the other the criminal record of a person to the extent permitted by its own laws.

2. For criminal record, only the sentences handed down in final judgements shall be understood.

ARTICLE 23

UNITED NATIONS

1. Any complaint filed by a competent authority whose purpose is to institute proceedings before the competent authority of the other, shall be transmitted through the Central Authorities.

2. The Central Requiring Authority will inform the Central Authority of the course given to the complaint and will forward, at the time, a copy of the decision taken.

ARTICLE 24

EXENTION OF LEGALIZATION

The documents provided for in this Agreement shall be exempt from any consular legalization or similar formality.

ARTICLE 25

CONSULTATIONS

The Central Authorities of the Contracting Parties shall consult, so that this Agreement is as effective as possible.

ARTICLE 26

CONTROVERSAL SOLUTION

Any dispute arising between the Parties relating to the interpretation or application of this Agreement shall be resolved by consultation between the Parties through diplomatic channels.

ARTICLE 27

IN VIGOR AND

This Agreement shall enter into force at sixty (60) days from the date on which the Parties communicate by Diplomatic Notes compliance with their constitutional and legal requirements.

This Agreement may be denounced by any Party at any time, through Diplomatic Note, which shall be effected six (6) months after the date of receipt by the other Party. The complaint will not affect ongoing requests for judicial assistance.

Made in Buenos Aires, on the three days of the month of April 1997, in two copies, in Spanish, being both equally valid and authentic.