By Which The National Statute Is Adopted Against Kidnapping And Other Provisions Are Issued

Original Language Title: Por la cual se adopta el estatuto nacional contra el secuestro y se dictan otras disposiciones

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40 OF 1993

(January 19)

Official Journal No. 40726 of 20 January 1993

By which the national statute against kidnapping is adopted and other provisions are dictated.

THE CONGRESS OF COLOMBIA,

DECRETA:

CHAPTER I.

OF CRIMES IN PARTICULAR

ARTICLE 1o. THE EXTORTIONATE KIDNAPPING. The one who outbursts, subtracted, retains or hides a person for the purpose of demanding for their freedom a profit or any utility, or for something to be done or omitted, or for publicity or political purposes, Twenty-five (25) to forty (40), years and a fine of one hundred (100) to five hundred (500) minimum monthly wages.

In the same penalty you will incur who outbursts, subtract, retain, or hide a personality of recognized notoriety or public influence.

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ARTICLE 2o. SIMPLE KIDNAPPING. For purposes other than those provided for in the previous article, take away, subtract, retain or hide a person, incur in prison from six (6) to twenty-five (25) years and in fine from one hundred (100) to two hundred (200) monthly minimum wages.

If the agent's purpose is to marry or obtain a sexual erotic purpose, he will be in prison for one (1) three (3) years. In order to proceed in this case, it is necessary to request a complaint.

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ARTICLE 3o. CIRCUMSTANCES OF PUNITIVE AGGRAVATION. The penalty referred to in Article 1o., shall be increased by eight (8) to twenty (20) years, if any of the following circumstances are present:

1. If the offence is committed in an invalid or sick person, or less than eighteen (18) years, or who does not have the full capacity for self-determination or is a pregnant woman.

2. If the victim is subjected to physical or moral torture or sexual violence during the time she remains kidnapped.

3. If the deprivation of the freedom of the kidnapped is prolonged for more than fifteen (15) days.

4. If the conduct is executed with respect to the relative to the fourth degree of consanguinity, quarter of affinity or first civil, on spouse or companion or permanent partner, or taking advantage of the trust placed by the victim in the author or in any or some of the partners.

For the effects foreseen in this article, affinity will be derived from any form of marriage or free union.

5. Where the offence is committed per person who is an official employee or who is or has been a member of the State security forces.

6. If it is committed in person who is or has been an official employee, journalist or candidate in charge of the popular election and because of his/her duties.

7. When the delivery or verification of the requirements is pressed, with the threat of death or injury or with the execution of an act involving serious common danger or serious harm to the community or to public health.

8. When committed for terrorist purposes.

9. Where the usefulness, benefit or purpose of the authors or partners is obtained.

10. Where the goods or the professional or economic activity of the victim are seriously affected.

11. Death or personal injury may occur when the victim is killed or on the occasion of the kidnapping.

12. If it is committed in person who is or has been a community, union, political or religious leader.

13. If the fact is committed using a forged arrest or arrest warrant or simulating it.

PARAGRAFO. The penalty noted in item 2o. of this Law, will be increased by up to half when there are any of the above circumstances.

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ARTICLE 4. CIRCUMSTANCES OF PUNITIVE ATTENUATION. If within fifteen (15) days following the abduction, the victim shall be voluntarily released, without any of the purposes provided for in Article 1o being obtained. of this Law, the penalty will be reduced by half.

In the events of article 2, there will be place for the same reduction of the penalty if the kidnapped, within the same term is voluntarily left in freedom.

There shall be no attenuation if one of the circumstances mentioned in the numbers 2., 5., 6., 7., 10., and 11 is present. of the previous article.

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ARTICLE 5o. CONCERT TO HIJACK. .

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ARTICLE 6o. ILLICIT ENRICHMENT DERIVED FROM KIDNAPPING. The person who, directly or by person, obtains for himself or for another unjustified increase in assets, and provided that the fact does not constitute another crime, incurs that fact only, in Five (5) to ten (10) years imprisonment, and a fine equivalent to the value of the unlawful increase achieved, without prejudice to the provisions of Article 34 of the Constitution.

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ARTICLE 7o. FAVOR. He who is aware of a crime of kidnapping and without prior concert, will help to avoid the action of the authority, or to hinder the corresponding investigation, will incur in prison of one (1) to five (5) years.

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ARTICLE 8o. RECEIPT. The one that outside the case of a crime contest, hides or helps to hide or to assure, or who uses, the product of a crime of kidnapping will incur in prison from one (1) to five (5) years.

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ARTICLE 9o. OMISSION OF REPORTS. The knowledge of the plans or activities for the execution of a crime of kidnapping shall not give the authorities appropriate notice, or I shall not report a kidnapping of whose authors or members are aware, shall be in the penalty set out in the previous Article.

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ARTICLE 10. NOTICE DEFAULT. The person who does not give notice to the authorities of a kidnapping or disappearance whose occurrence has direct knowledge, will be in prison for six (6) months at one (1) year.

The Attorney General of the Nation will have the relevant information to keep the identity of the person who gives the notice that this article is about to be kept secret.

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ARTICLE 11. SPECIAL INVESTIGATION OBLIGATION. Judges and competent authorities shall, on their own initiative, carry forward the relevant investigations, where they are aware, by any means, that a possible crime of kidnapping has been committed or that a disappearance has occurred.

Preliminary investigations will tend to find out the fact of the kidnapping, and once there are indications that this crime has been committed, they will proceed in agreement with the Office of the Prosecutor General of the Nation, to try to provide the This Law shall be based on the assets of the abductee and the persons referred to in Article 18 of this Law.

The Attorney General's Office will have special surveillance and monitoring systems in place in cases of investigation and prosecution of kidnapping crimes and the disappearance of persons.

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ARTICLE 12. IMPROPER CONCLUSION OF INSURANCE CONTRACTS. Whoever intervenes in the conclusion of a contract that ensures the payment of the ransom of a possible kidnapping or in the negotiation or intermediation of the ransom requested by a kidnapped, incurs in prison of one (1) to two (2) years.

CHAPTER II.

PROCEDURAL ISSUE

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ARTICLE 13. CONFISCATION OF PROPERTY. The movable or immovable property that is used to snatch, subtract, retain or hide a person for the purpose of demanding for his or her freedom a benefit or any utility, or for something to be done or to be omitted, or publicity or political purposes or for any other purpose, shall be seized and immediately placed at the disposal of the Office of the Prosecutor General of the Nation, which, by resolution, may provisionally be assigned to the official service or to legally established common profit entities.

Who has a legally proven right over the respective good, will have preference to receive it in deposit or under any title not to be transferred of domain. The competent authority issuing the confiscation shall give immediate notice to the persons concerned for the exercise of their rights.

If the owner is convicted as an author, a participant or an accomplice, the profits obtained from these goods will be applied to the prevention and repression of the kidnapping.

You may be ordered at any time by the same authority to return the goods or the value of your remate, plus the profits made as a product of such goods, if applicable, to third parties, if you are fully tested within the process that they did not have any involvement in the illicit fate given to those goods. In any case, it will be up to them to prove that the goods seized, or were not used, or were not authorized or even tacit in the kidnapping commission.

The providence that orders the return referred to in this article must be consulted and will only take effect once confirmed by the superior.

PARAGRAFO. When dealing with goods that are subject to property registration, the same authority must report the seizure to the people enrolled in the registry.

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ARTICLE 14. AMNESTY AND PARDON. In no case shall the author or the partners of the crime of kidnapping, in any of its modalities, be able to benefit from amnesties and pardons or their consequent cessation of procedure or self-inhibitory order, nor shall he be entitled to (a) to consider the kidnapping as a connection with the political crime, given its status as atrocious.

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ARTICLE 15. EXCLUSION OF BENEFITS AND SURROGATES. Except as provided for in Article 17 of this Statute, in Article 37 and the reduction by confession provided for in the Code of Criminal Procedure, the accused or convicted of the offences under which this law is dealt with shall not be entitled to the sentence of conditional execution, probation or administrative subrogates.  In cases of the crime of kidnapping, the suspension of preventive detention or conviction cannot be granted. Provisional freedom may be granted only by penalty.

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ARTICLE 16. TAXABLE PENALTIES TO THE PUBLIC SERVANT. The public servant, whatever his office or function, which facilitates, promotes or in any way collaborates in the payment of ransom for the release of a kidnapped person, will incur misconduct which will result in the removal of his office or the loss of his or her investiture, and inability to exercise his public duties for 10 (10) years, without prejudice to the criminal penalties to which he or she may take place.

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ARTICLE 17. BENEFITS BY COLLABORATION. For reasons of convenience assessed by the Attorney General of the Nation, or by the official designated by him, the penalties provided for in the punishable acts enshrined in this Law will be lowered in half, when the (a) to be effective in the clarification of the facts, or in the arrest of authors or members or in the establishment of criminal liability for the offences enshrined in this statute.

In exceptional cases, and because of the effectiveness of the collaboration, the sentence of conditional execution may be recognized, to be dispensed with the imposition of penalties or the execution of the one that was imposed, on the request of the Attorney General of the Nation or the Vice-Prosecutor, prior to the Attorney General's concept.

When the collaboration allows to capture and deduct criminal responsibility for those who make up criminal organizations, may be ordered or requested for the preclusion or cessation of procedure by the Attorney General of the Nation.

If the collaboration referred to in this article is carried out during the instruction stage, the Prosecutor, in formulating the indictment, will accompany the said resolution of the minutes in which he has agreed with the defendant to the punitive decrease in order for the judge to To dose the penalty to acknowledge that benefit. If it is carried out at the judging stage, the Prosecutor will sign an act containing the agreement that has been reached with the defendant for the granting of the benefits referred to in this article, which will contribute to the process for the judge to recognize those benefits in the judgment. If the collaboration comes from a sentenced person, the agreement between the defendant and the Prosecutor who intervened in the process, the corresponding record will be sent to the judge who is executing the sentence to decrease the penalty or exonerate the sentenced of its execution.

In the procedure laid down in this article, the Public Ministry will intervene.

PARAGRAFO. The punitive decrease referred to in this article will be requested by the prosecution to the Prosecutor who is aware of the instruction or who is acting or has acted in the judgment stage, who is meet with the petitioner and if any agreement is reached, the respective minutes will be seated.

If it is considered that the exclusion of penalty, preclusion or termination of procedure is appropriate, the request will be sent to the Attorney General of the Nation or the Vice-Prosecutor, so that determine the provenance of such benefits and if feasible, a record shall be drawn which shall be sent to the respective official for the determinations referred to in the preceding points

CHAPTER III.

POWERS OF THE NATION ' S ATTORNEY GENERAL.

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ARTICLE 18. ADMINISTRATIVE SURVEILLANCE OF GOODS.

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ARTICLE 19. ACTIONS AND EXCEPTIONS.

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ARTICLE 20. SANTIONS.

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ARTICLE 21. REPORTS AND AUTHORIZATIONS.

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ARTICLE 22. PROSECUTOR DELEGATED FOR KIDNAPPING. Authorize the Attorney General of the Nation to create the prosecutor's office delegated for the kidnapping or the units of the Prosecutor's Office for the same purpose, whose functions will be among others, the investigation and prosecution of the courts and competent courts, of the offences contained in this Law, the administrative supervision of goods referred to in Article 18. in addition to the effective implementation of this Law.

The Prosecutor General's Office will also have the power to offer and pay rewards, as well as to protect witnesses and union members who collaborate with the Prosecutor General's Office.

PARAGRAFO. The Office of the Prosecutor-General for the kidnapping or the prosecution units for the same purpose, will have at their disposal a specialized team of members of the technical investigation body of the prosecution, who will count with all the means and resources sufficient for the performance of their work, and all that is necessary to ensure their personal protection.

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ARTICLE 23. TAX AUTHORITY TO REQUEST INFORMATION. The instructor officer, with the collaboration of the State security agencies, shall control the acquisition of movable and immovable property, in particular of motor vehicles, bank statements and other transactions carried out in unaccustomed form in the respective locality.

For this purpose, the notary, the public-instrument registry offices, the financial and banking entities, the transit offices, and in general the commercial enterprises, will supply the information on the particular, when they are required or when they consider that a situation has been presented which allows the possibility of transactions to be presumed to be carried out to carry out a kidnapping or to cancel the value of a release.

CHAPTER IV.

BANS

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ARTICLE 24. GRANTING OF CREDITS, BONDS AND ENDORSEMENTS.

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ARTICLE 25. SANCTIONS AGAINST DOMESTIC AND FOREIGN COMPANIES. Without prejudice to any other sanctions to be imposed, where any manager of a national or foreign company, or his delegate hide or collaborate in the payment of the release of a kidnapping an official or employee of the same, or of one of its subsidiaries, the government shall be empowered to decree the expiration of the contracts that this company has entered into with state entities. In case the fact is committed by an official or delegate of a subcontractor of the former, if this is foreign, the government will order its immediate expulsion from the country. 1The national subcontractors shall be subject to the penalties provided for in this Law.

PARAGRAFO 1o. The national or foreign contractor who pays sums of money to extortionists will be granted the penalties provided for in this article.

PARAGRAFO 2o. The contracts that Colombian state entities conclude with foreign and domestic companies will carry a clause in which the precept in this article is included.

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ARTICLE 26. INSURANCE CONTRACTS. Without prejudice to any other sanctions to be imposed, the insurance contracts which, in any form, are granted to cover the risk of payment for the release of an abducted person, shall be ineffective in full. the right, and the insurance companies and the brokers or intermediaries involved in their realization, will be sanctioned by the Banking Superintendence, after administrative investigation, with a fine of not less than two hundred (200) minimum wages and not more than two thousand (2000) minimum monthly wages without prejudice to the provisions of Article 12 of this Law.

CHAPTER V.

INTELLIGENCE WORK AND GROUPS JOIN

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ARTICLE 27. COORDINATION OF INFORMATION ON INTELLIGENCE AGAINST KIDNAPPING AND EXTORTION. The Minister of National Defense will establish a committee made up of the State security agencies to coordinate the collection, analysis, evaluation and dissemination of information. the information required by the Office of the Prosecutor General of the Nation and other bodies responsible for investigating and repressing the crimes of extortion and kidnapping.

CHAPTER VI.

PENALTIES INCREASE

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ARTICLE 28. AMENDMENTS TO ARTICLE 44 OF THE PENAL CODE. Article 44 of Decree Law 100 of 1980, Penal Code, will be as follows:

Duration of the penalty: The maximum duration of the penalty is as follows:

-Prison, up to sixty (60) years.

-Arrest, up to five (5) years.

-Home restriction, up to five (5) years.

-Interdiction of rights and public functions, up to ten (10) years.

-Prohibition of the exercise of an art, profession or trade, up to five (5) years.

-Suspension of the parental authority, up to fifteen (15) years.

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ARTICLE 29. ON HOMICIDE. Article 323 of the Decree Law 100 of 1980, Penal Code will remain so:

HOMICIDE. The one who will kill another will incur in prison from twenty-five (25) to forty (40) years.

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ARTICLE 30. AMENDMENT TO ARTICLE 324 OF THE PENAL CODE. Article 324 of the Decree Law 100 of 1980, Penal Code, will be as follows:

ARTICLE 324. CIRCUMSTANCES OF PUNITIVE AGGRAVATION. The penalty will be forty (40) to sixty (60) years in prison, if the fact described in the previous article was committed:

1. In the person of the ascending or descending, spouse, adoptive or adoptive brother or relative until the second degree of affinity.

2. To prepare, facilitate or consume another punishable fact; to hide it, to assure its product or the impunity, for itself or for the members.

3. By means of any of the conduct provided for in Chapters II and III of Title V of the Second Book of this Code.

4. For price, salary promise, profit motive or for other abject or futile motive.

5. Using the unimputable activity.

6. With sevice.

7. Placing the victim in a situation of defenseless or inferiority or taking advantage of this situation.

8. For terrorist purposes, in the development of terrorist activities or in person who is or has been a public servant, journalist, candidate in charge of popular choice, community leader, trade union, political or religious; member of the public force; university professor, diplomatic or consular agent at the service of the Nation or accredited to her, for cause or reason of her charges or dignity or for the exercise of her functions, or in any inhabitant of the national territory by her political beliefs or opinions; or in their relatives within the fourth degree of consanguinity, second of affinity or civil first.

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ARTICLE 31. AMENDMENT TO ARTICLE 28 OF THE CRIMINAL CODE. 26 of Law 365 of 1997. >

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ARTICLE 32. AMENDMENT OF ARTICLE 355 OF PENAL CODE. Article 355 of the Decree Law 100 of 1980, Penal Code, will be thus:

ARTICLE 355. EXTORTION. The one who constrains another to do, tolerate or omit something, for the purpose of obtaining illicit profit for himself or for a third party, will incur in prison from four (4) to twenty (20) years.

The penalty will be increased from the third part in half, if the constraint is made to consist of a threat to execute an act of which calamity, misfortune or common danger can be derived.

If the purpose or purpose pursued by the agent is to facilitate terrorist acts by constraining another by means of threats to make, to supply, to tolerate or to omit something, the sanction shall be twenty (20) to thirty (30) years of imprisonment, fine of one thousand (1000) at two thousand (2000) monthly minimum legal wages.

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Similarly, who knows about the plans and activities of one of the aforementioned groups or organizations of persons in relation to the crime of extortion, will omit to report in a timely manner on those to the authority, or do not denounce an extortion whose authors or members have knowledge, will incur the penalty set out in the first sub-paragraph in half.

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ARTICLE 33. OFFICIAL EMPLOYEES. The official employee who omit, rehuses, or refuses an act of his or her duties in relation to the prevention, investigation or prosecution of extortion or kidnapping, will be in prison for two (2) to ten (10) years and interdiction of rights and public functions to the same term.

CHAPTER VII.

VARIAS PROVISIONS

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ARTICLE 34. MONITORING COMMITTEE.   Create a commission composed of three (3) Senators and three (3) Representatives, members of the First Commissions of each House and appointed by these Commissions, to be responsible for overseeing the policies government and judicial against kidnapping, as well as the behavior of authorities and judges, in relation to their obligations towards this offence. This Commission may request reports and suggest actions and policies in relation to this issue.  Similarly, this Commission will be in charge of receiving, evaluating and publicizing national and international public opinion, cases of violation of the human rights of the kidnapped.

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ARTICLE 35. ASSISTANCE PROGRAMS. The National Government, subject to the development plan, will carry out comprehensive assistance programs for the kidnapped and their families, designed and put into operation by state entities or with the private institutions that are capable of bringing these tasks forward.

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ARTICLE 36. PUBLIC CAMPAIGNS. The Ministry of Justice, in coordination with the Ministry of Communications, will institutionalize publicity and all kinds of campaigns aimed at preventing and combating the crime of kidnapping, as well as the dissemination of content, the objectives and compliance with this Law.

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ARTICLE 37. BUDGET TRANSFERS AND ADDITIONS. Authorize the National Government, to verify the transfers and the budgetary additions necessary for the implementation of this Law.

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ARTICLE 38. The effective collaboration of the investigators and judicial authorities that allow the capture of the kidnappers, will be able to obtain the benefits granted by the special program of protection to the collaborators of the justice and will receive of the erarium in the title of gratification the equivalent of what the State considers exempt from all tax in the respective taxable year.

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ARTICLE 39. Repeal paragraph 3. Article 28 of Decree Law 180 of 1988 adopted as permanent legislation by Article 4. of the Extraordinary Decree 2266 of 1991 which states: "If the death of one or more persons occurs, the penalty shall be twenty (20) to thirty (30) years and the fine of fifty (50) to two hundred (200) monthly minimum legal wages."

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ARTICLE 40. VALIDITY AND SCOPE. This Law governs from its enactment, modifies and repeals all provisions that are contrary to it.

The President of the Honorable Senate of the Republic,

TITO E. RUEDA GUARIN,

The Secretary General of the Honorable Senate of the Republic.

Pedro Pumarejo Vega,

The President of the Honorable House of Representatives,

CESAR PEREZ GARCIA,

The Secretary General of the Honorable House of Representatives,

Diego Vivas Tafur.

Republic of Colombia-National Government

Publish and Execute.

Dada en Santafe de Bogota D.C., a los nineteen (19)

days of the month of January of a thousand nine hundred and ninety-three (1993).

CESAR GAVIRIA TRUJILLO

The Minister of Justice,

Andres Gonzalez Diaz

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