Decree No. 3895, Of 23 August 2001

Original Language Title: Decreto nº 3.895, de 23 de Agosto de 2001

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DECREE NO. 3,895, OF August 23, 2001

Promulgates the Agreement on Judicial Cooperation and Mutual Assistance in Criminal Matters between the Government of the Federative Republic of Brazil and the Government of the Republic of Colombia, celebrated in Cartagena of Indias, on November 7, 1997.

THE PRESIDENT OF THE REPUBLIC, in the use of the assignment that confers it on art. 84, inciso IV, of the Constitution,

Considering that the Government of the Federative Republic of Brazil and the Government of the Republic of Colombia signed, in Cartagena of Indies, on November 7, 1997, a Judicial Cooperation Agreement and Mutual Assistance in Criminal Matters;

Whereas the National Congress approved that Agreement through Legislative Decree No. 41 of June 18, 1999;

Whereas the Agreement entered into force on June 29, 2001,

DECRETA:

Art. 1º The Agreement on Judicial Cooperation and Mutual Assistance in Criminal Matters between the Government of the Federative Republic of Brazil and the Government of the Republic of Colombia, celebrated in Cartagena of Indias, on November 7, 1997, apensed by copy to the present Decree, will be executed and fulfilled as entirely as it contains.

Art. 2º They are subject to the approval of the National Congress any acts that may result in revision of the said Agreement, as well as any further adjustments that, pursuant to art. 49, inciso I, of the Federal Constitution, carries gravy charges or commitments to the national heritage.

Art. 3º This Decree takes effect on the date of its publication.

Brasilia, August 23 of 2001; 180º of Independence and 113º of the Republic.

FERNANDO HENRIQUE CARDOSO

Celso Lafer

Judicial Cooperation Agreement and Mutual Assistance in Criminal Matters between the Government of the Federative Republic of Brazil and the Government of the Republic of Colombia

The Government of the Federative Republic of Brazil and

The Government of the Republic of Colombia (henceforth called "Parties");

Considering the bonds of friendship and cooperation that bind them together as neighboring countries;

Estimating that the fight against delinquency requires joint acting of the various countries;

Recognizing that the fight against delinquency is a shared responsibility of the international community;

Consent that the strengthening of the mechanisms of judicial cooperation is necessary and mutual assistance, to prevent the increment of the delightful activities;

Wishes to increment joint actions of prevention, control and crackdown on the offence in all its manifestations, by means of the coordination of actions and implementation of concrete programs;

Observing the constitutional, legal and administrative norms of its states, as well as respect for the principles of International Law, in particular of sovereignty, territorial integrity and non-intervention, and taking into account the recommendations of the United Nations on the matter;

Wake up the following:

Chapter 1

General Provisions

Article I

Scope of Application

1. This Agreement shall have the purpose of mutual legal assistance in criminal matters between the competent authorities of the Parties.

2. The Parties shall provide each other with mutual assistance, as per the provisions of this Agreement and in strict compliance with their respective legal ordinances, for the investigation of offences and cooperation in prosecutions relating to criminal matters.

3. This Agreement does not provide for the authorities or individuals of the Requesting Party to carry out, in the territory of the Redear Party, of functions which, under internal laws, are reserved to their authorities, save in the case provided for in Article 13, paragraph 3.

4. This Agreement will not apply to:

a) detention of persons with the purpose that they are extradited nor to extradition requests;

b) rear of convicted persons with the aim of them to comply with criminal sentencing;

c) assistance to private individuals or to third parties states.

Article II

Reach of Assistance

The assistance will understand:

a) notification of procedural acts;

b) reception and production or practice of evidence, such as testimonials and statements, expertise and inspection of persons, goods and places;

c) localization and identification of persons;

d) notification of persons and experts to appear voluntarily in order to provide statement or testimony on the territory of the Applicant Party;

e) trasside of persons held for turnout as testimony in the territory of the Applicant Party or with other purposes expressly stated in the application, as per this Agreement;

f) measures wary of goods;

g) fulfillment of other claims relating to goods, including the eventual definitive transfer of the value of the confiscated goods;

h) delivery of documents and other objects of proof;

i) embargo and hijacking of goods for the purpose of payment of damages and fines imposed by criminal sentencing;

j) any other form of assistance according to the purposes of this Agreement whenever it does not is incompatible with the laws of the Redear State

Article III

Central authorities

1. Each of the Parties shall designate a Central Authority charged with submitting and receiving the applications constituting the object of this Agreement.

2. To such an end, the Central Authorities will communicate directly and send the requests to their competent authorities.

3. The Central Authority for the Federative Republic of Brazil is the Ministry of Justice. With respect to the requests for assistance sent to Colombia, the Central Authority will be the "Fiscalía General de la Nación"; with respect to the requests for legal assistance made by Colombia, the Central Authority will be the " Fiscalía General de la Nación " or the Ministry of Justice and the Law.

Article IV

Competent Authorities for the Request for Assistance

The requests transmitted by a Central Authority in accordance with this Agreement shall be based on requests for assistance from competent authorities of the Party Applicant in charge of the trial or investigation of offences.

Article V

Denegation of Assistance

1. The Requested Party may denigrate assistance when:

a) the application refers to a typified offence as such in military legislation, but not in ordinary criminal law;

b) the application refers to an offence that in the Redear Part be of a political character or conjoined and carried out with political purposes;

c) the person with respect to which the measure is requested there is acquitted or there is served time in the Redear Part by the offence mentioned in the request. This device shall not, however, be invoked to deny assistance in relation to other persons;

d) compliance with the application is contrary to security, public order or other essential interests of the Party Required;

e) the request for assistance is contrary to the legal planning of the Redear Party or does not fit the devices of this Agreement.

2. If the Redear Party denigrates assistance, it shall, through its Central Authority, inform that fact to the Redear Party, by fertilising the reasons for denigration, without prejudice to the provisions of Article 12 ("b".

3. The Competent Authority of the Redear Party may denigrate, condition or defer compliance with the application, when it considers that it constitutes an obstacle to an ongoing criminal case in its territory. On such conditions the Redear Party shall consult with the Applicant Party through the Central Authorities. If the Applicant Party accepts the conditioned assistance, the application will be met in accordance with the conditions presented.

Chapter 2

Call to the Orders

Article VI

Forma and Order Contents

1. The request for assistance should be formulated in writing.

2. If the application is sent by telex, fax, electronic mail or other equivalent means, it should be confirmed by original document signed by the Applicant Party within the 30 days following its wording, as set forth in this Agreement.

3. The application should contain the following particulars:

a) identification of the Competent Authority of the Applicant Party;

b) description of the subject matter and the nature of the judicial process, including the offences to which if refers;

c) description of the assistance measures requested;

d) reasons for which the measures are requested;

and) text of the applicable legislation;

f) identity of the persons subject to the judicial procedure, when known;

g) period within which the Applicant Party wishes for the application to be complied with.

4. When it is necessary, and to the extent possible, the application should also include:

a) information about the identity and domicile of the persons whose testimony it wishes to obtain;

b) identity and domicile of the people to be notified and their relationship with the process;

c) information about the identity and whereabouts of the people to be found;

d) exact description of the place to be inspected and the identification of the person to be subjected to examination, as well as the subject goods of a cautionary measure or subject to forfeiture;

text of the interrogation to be formulated for the obtaining of the testimonial proof in the Redear Part, as well as the description of how it should be obtained and registered any testimony or statement;

f) description of the form and procedures, by which the application should be complied with, if so requested;

g) information on the payment of the amount that will be ascribe to the person whose presence is requested in the territory of the Redear Party;

h) when necessary and appropriate, the indication of the authorities of the Applicant Party that will participate in the process that develops in the territory of the Redear Part;

i) any other information that may be of usefulness to the Redear Party to facilitate the fulfilment of the application.

5. Applications should be forwarded in the language of the Applicant Party, accompanied by the translation in the language of the Redear Part.

Article VII

Applicable Law

1. The fulfillement of the applications shall be carried out under the law of the Redear Party and in accordance with the devices of this Agreement.

2. At the request of the Applicant Party, Part Redear will provide the assistance in accordance with the special forms and procedures stated in the application, unless they are incompatible with their internal legislation.

Article VIII

Confidentiality and Limitations to the Use of Information

1. The Requested Party will keep under wraps the request for legal assistance, except when its break is necessary to meet the said request.

2. If, for the fulfilment of the application it is necessary to break the secrecy, the Redear Party shall request the approval of the Applicant Party, upon written communication, without which it will not meet the application.

3. Competent Authority of the Redear State may request that the information or evidence obtained by virtue of this Agreement has confidential character, under the conditions it shall specify. In such a case, the Applicant Party shall respect such conditions. If you are unable to accept them, you will notify the Redear Party, which will decide on the request for cooperation.

4. Only with prior permission of the Redear Party, the Party Applicant may employ the information or proof obtained by virtue of this Agreement in the investigation or procedure indicated in the application.

Article IX

Information about the Andment of the Order

1. At the request of the Central Authority of the Applicant Party, the Central Authority of the Redarling Party shall, within a reasonable time, inform about the progress of the application.

2. The Central Authority of the Redear Party shall inform with certainty about the result of the fulfilment of the application and shall refer all the information and evidence obtained to the Central Authority of the Applicant Party.

3. Where it is not possible to comply with the request, in whole or in part, the Central Authority of the Redear Party shall communicate this fact immediately to the Central Authority of the Applicant Party and shall inform the reasons for which it has not been possible to comply with it.

4. The information will be written in the language of the Redear Part.

Article X

Expenses

The Redear Part will take charge of the diligeny expenditure of the application. The Requesting Party will pay the corresponding expense and fees to the experts, translations, transcripts, extraordinary expendities for the employment of special forms or procedures and the travel expenses of the persons indicated in Articles 14 and 15.

Chapter 3

Forms of Assistance

Article XI

Notifications

1. The Central Authority of the Applicant Party shall transmit the notification request for a person to appear before the Competent Authority of the Applicant Party with reasonable advance notice of the expected date for the mentioned attendance.

2. If the notification does not occur, it shall inform, via the Central Authorities, to the Competent Authority of the Applicant Party, the reasons for which it was not able to comply.

Article XII

Delivery and Devolution of Official Documents

1. By request of the Competent Authority of the Requesting Party, the Competent Authority of the Redear Party, through the Central Authorities:

a) shall provide copy of official documents, records and information accessible to the public;

b) will be able to provide copies of documents and information to which the public does not have access, under the same conditions in which those documents would arise at the disposal of their own authorities. If assistance provided for in this paragraph is denigrated, the Competent Authority of the Redear Party will not be obliged to declare the grounds for denigration.

2. Documents or objects that have been sent in compliance with a request for legal assistance should be returned by the Competent Authority of the Applicant Party, when the Redear Party requests.

Article XIII

Assistance in the Redear Part

1. Every person who finds himself in the territory of the Redear Party and to whom he is requested to provide testimony, submit documents, background or evidence by virtue of this Agreement, is to appear, in accordance with the Party's legislation Required, in front of the Competent Authority.

2. The Requested Party shall inform with reasonable notice, the place and the date on which it receives the witness statement or the documents mentioned, background or evidence. When it is necessary, the Competent Authorities shall consult, through the Central Authorities, to set a convenient date for the Competent Authorities of the Applicant and Redear Parties.

3. The Requested Party shall authorise, under his command, the presence of the authorities indicated in the application during the performance of cooperative representations and will allow to formulate the questions if so to admit their legislation. The hearing will occur in accordance with the procedures laid down by the legislation of the Redear Part.

4. If the person referred to in paragraph 1 alleges immunity, privilege or disability under the legislation of the Redear Party, the Competent Authority of the Redear Party shall resolve on that claim and shall communicate to the Party Redear by means of the Authority Central.

5. The documents, background and evidence delivered by the declarants or obtained as a result of declaration or presented at that time will be sent to the Applicant Party along with the declaration.

Article XIV

Assistance in the Applicant Party

1. Where the Applicant Party requests the presence of a person on its territory to provide testimony, or offer information or statement, the Redear Party shall invite the declarant or the expert to come forward before the Competent Authority of the Part Applicant.

2. The Competent Authority of the Redear Party shall record in writing the consent of a person whose presence is requested by the requesting Party, and shall immediately inform the Central Authority of the Party Applicant about the response.

3. When applying for the turnout, the Central Authority of the Applicant Party shall indicate the costs of trasside and of stay at his / her post.

Article XV

Comment of Detained People

1. If the Applicant Party requests the presence of a person who is detained in the territory of the Redear Party, this shall trasportion the person detained to the territory of the Applicant Party after making sure that there are no serious reasons to prevent the backlass and that the person detained express their consent.

2. You will not admit yourself when, as per the circumstances of the case, the Competent Authority of the Part Required deems it inconvenient, specifically when:

a) the presence of the detained person is required in a proceeding criminal proceeding in progress on the territory of the Redear Part;

b) the trans-side may imply extension of preventive detention.

3. The Requesting Party will keep in custody the person who is transferred and will deliver it to the Redear Party within the period by this fixated.

4. The time in which the person is outside the territory of the Redear Part will be computed for the purpose of preventive arrest or penalty compliance.

5. Where the penalty imposed on the person transladed, at the limits of this article, expires, and she finds herself in the territory of the Requesting Party, must be put into freedom by passing, from then on, to enjoy the condition of non-detained person for the purposes of the present Agreement.

6. The detained person who does not give his consent to provide statements in the terms of this Article, will not be subject, for that reason, to any penalty nor will he be subjected to any cominatory measures.

7. When a Party requests the other, in accordance with this Agreement, the trasside of a person of his or her nationality and its Constitution prevents the delivery to any title of their nationals, shall inform the contents of those provisions to the other Party, that will decide on the convenience of the solicitation.

Article XVI

Temporary Warranty

1. The attendance of a person who consents to make some statement or provide testimony, under the provisions of Articles 14 and 15, will be conditional on the Part Applicant giving a temporary guarantee for which the latter will not be able to, while the person to find themselves in their territory:

a) detain or judge her for prior offences to her exit from the territory of the Redear Part;

b) to quote her to appear or to give testimony in proceedings other than the specified in the request.

2. The temporary guarantee will cease when the person voluntarily extends his / her stay on the territory of the Applicant Party for more than 10 (ten) days, from the time his or her presence is not required in that State, according to what was communicated to the Redear Part.

Article XVII

Cautelary Measures

1. The Competent Authority of the Redear Party shall forward the request for cooperation on a cautionary measure, if it contains sufficient information to justify the provenance of the requested measure. That measure will submit to the procedural and substantive law of the Redear State.

2. Where a Party has knowledge of the existence of instruments, the object or the fruits of the offence, in the territory of the other, which may be subject to precautionary measures, under the legislation of that Party, it shall inform the Central Authority of that State. This will send the information received to the Competent Authorities to determine the adoption of the appropriate measures. Such authorities shall act in accordance with laws of their country and shall communicate to the other Party, through the Central Authorities, the measures adopted.

3. The Requested Party shall decide, under its legislation, any request relating to the protection of the rights of third parties in relation to objects that are matter of the measures provided for in the preceding paragraphs.

4. A request formulated by virtue of this article should include:

a) copy of the decision on a cautionary measure;

b) summary of the facts of the case, inclusive of the description of the offence, where and when it was committed and a reference to the relevant legal provisions;

c) if it is the case, description of the goods in respect of which one intends to effect the measure, its commercial value, and the relationship of them with the person against whom it has started;

d) estimation of the values that give to the cautionary measure and fundamentals of the respective calculation.

5. The Competent Authorities of each of the Parties shall inform you with certainty about the interposition of any appeal or of a decision adopted regarding the cautionary measure requested or granted.

6. The Competent Authority of the Redear Party may impose a time limit on the duration of the requested measure, which shall be notified with certainty to the Competent Authority of the Requesting Party with an indication of the reasons for that decision.

Article XVIII

Other Cooperation Measures

1. The Parties, in accordance with their internal legislation, will be able to provide cooperation for the fulfilment of the definitive measures on the goods linked to a wrongdoing committed in either Party.

2. The Parties will be able to negotiate Agreements on that matter.

Article XIX

Custody and Disposition of Bens

A Part that has in its custody the instruments, the object and the fruits of the offense, of them will have according to the one established in its internal legislation. As it is permitted by its legislation and in the terms that consider itself appropriate, such Party may divide with the other the confiscated goods or the proceeds of its sale.

Article XX

Responsibility

1. Liability for damages that may derive from the acts of your authorities in the fulfillment of this Agreement shall be governed by the internal legislation of each Party.

2. Neither Party shall be liable for damages that may result from acts of authorities of the other Party, in the formulation or service to a request, of compliance with this Agreement.

Article XXI

Authentication of Documents and Certificates

The documents coming from one of the Parties that should be presented in the territory of the other and which tramway by intermediate of the Central Authorities, do not require authentication or any other similar formality.

Article XXII

Solution of Controversias

1. Any controversy that arises from an application will be resolved by consultation between the Central Authorities.

2. Any controversy that arises between the Parties relating to the interpretation or application of this Agreement shall be resolved by consultation between the Parties by diplomatic means.

Chapter 4

Final Provisions

Article XXIII

Compatibility With Other Treaties, Agreements or Other Forms of Cooperation

1. The assistance set out in this Agreement shall not prevent each Party from providing assistance to the other on the basis of other international instruments prevailing among them.

2. This Agreement will not prevent the Parties from the possibility of developing other forms of cooperation in accordance with their respective legal ordinances.

This Agreement shall enter into force as of the date on which the Parties carry out the exchange of the instruments of ratification.

This Agreement may be denounced by either Party at any time by means of a diplomatic note, to which effect 6 (six) will arise. months after the date of receipt by the other Party. The complaint will not affect the ongoing assistance requests.

Made in Cartagena of Indies, at 07 days of the month of November 1997, and two copies, in the Portuguese and Spanish languages, being both texts being equally valid and authentic.

By the Government of the Federative Republic of Brazil

Iris Rezende

Minister of Justice

By the Government of the Republic of Colombia

Almabeactress Rengifo Lopez

Minister of Justice


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