451 OF 1998
Official Journal No 43,360 of 11 August 1998)
By means of which the Convention of Judicial Cooperation in Criminal Matters is approved between the Republic of Colombia and the Kingdom of Spain, signed in the city of Santa Fe de Bogota, D. C., the twenty-nine (29) of May of a thousand nine hundred and ninety-seven (1997).
Having regard to the text of the "Convention of Judicial Cooperation in Criminal Matters between the Republic of Colombia and the Kingdom of Spain", signed in the city of Santa Fe de Bogota, D. C., the twenty-nine (29) of May of one thousand nine hundred and ninety-seven (1997), which to the letter says:
(To be transcribed: photocopy of the full text of the aforementioned International Instrument, duly authenticated by the Head of the Legal Office of the Ministry of Foreign Affairs).
" CONVENTION ON JUDICIAL COOPERATION IN CRIMINAL MATTERS BETWEEN THE REPUBLIC OF COLOMBIA AND THE KINGDOM OF SPAIN
The Republic of Colombia and the Kingdom of Spain, hereinafter the Parties;
Considering the bonds of friendship and cooperation that unite them;
Estimating that the fight against crime requires the joint action of the States;
Acknowledging that the fight against crime is a shared responsibility of the international community;
Aware that it is necessary to strengthen the mechanisms of judicial cooperation and mutual assistance, in order to prevent the increase of criminal activities;
Eager to bring forward actions for the control and repression of crime in all its manifestations, through the coordination of actions and execution of concrete programs;
In observance of 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 United Nations recommendations on the subject.
The following have been agreed:
1. The purpose of this Convention is mutual legal assistance in criminal matters between the competent authorities of the parties.
2. The parties shall assist each other in accordance with the provisions of this Convention and in strict compliance with their respective legal systems, for the investigation of crimes and for cooperation in judicial proceedings. related to criminal matters.
3. This Convention does not entitle the authorities or individuals of the Requesting Party to carry out on the territory of the Requested Party functions which, according to internal laws, are reserved for their authorities, except in the case provided for in the Convention. Article 14, paragraph 3o.
4. This Convention shall not apply to:
(a) The detention of persons in order to be extradited, or to extradition requests;
(b) The execution of criminal sentences, including the transfer of convicted persons with the purpose of serving criminal sentences;
c) Assistance to individuals or third countries.
5. This Convention shall be deemed to be concluded exclusively for the purpose of mutual legal assistance between the Contracting States. The provisions of this Convention shall not create any right in favour of individuals in order to obtain, remove or exclude evidence or to impede the enforcement of an application.
ARTICLE 2o. DOUBLE INCRIMINATION. The assistance shall be provided even if the fact that it is carried out in the Requesting Party is not considered as a crime by the law of the Required Party.
However, for the execution of judicial inspections, requisitions, records and precautionary or definitive measures on property, the assistance shall be provided only if the legislation of the Replaced Party provides for the fact that the act of the Party is a crime. comes from the Requesting Party.
ARTICLE 3o. SCOPE OF ASSISTANCE. Assistance will include:
a) Notification of procedural acts;
b) Reception and production or practice of tests, such as testimonies and statements, expertise and inspections of persons, goods and places;
c) Localization and identification of people;
(d) Notification of persons and experts to appear voluntarily in order to provide evidence or testimony from the Requesting Party;
e) Transfer of persons detained for the purpose of appearing as witnesses in the Requesting Party or for other purposes expressly indicated in the application, in accordance with this Convention;
f) Precautionary measures on goods;
g) Compliance with other requests for goods, including the eventual transfer of the value of the seized goods in a definitive manner;
h) Delivery of documents and other test objects;
i) Any other form of assistance in accordance with the purposes of this Convention as long as it is not incompatible with the laws of the Requested State.
1. The Central Authorities shall be responsible for submitting and receiving for direct communication between them the requests for assistance referred to in this Convention.
2. For the Kingdom of Spain the Central Authority shall be the Ministry of Justice. In relation to requests for assistance sent to Colombia, the Central Authority will be the Prosecutor General's Office. In relation to requests for assistance from Colombia, the Central Authority shall be the Office of the Prosecutor General of the Nation or the Ministry of Justice and Law.
The parties may, by Exchange of Letters, communicate the modifications in the designation of the Central Authorities.
3. Notwithstanding the foregoing, the parties may, where they consider it necessary, turn to diplomatic channels for the submission or receipt of requests for assistance.
ARTICLE 5o. COMPETENT AUTHORITIES FOR THE REQUEST FOR ASSISTANCE. Applications transmitted by a Central Authority in accordance with this Convention shall be based on requests for assistance from the competent authorities of the Requesting Party. responsible for the prosecution or investigation of crimes.
1. The Required Party may refuse assistance when:
(a) The application relates to a criminal offence as such in military law rather than in ordinary criminal law;
(b) The application relates to a crime which in the Required Party is strictly political;
(c) The person in respect of whom the measure is sought has been cleared or has served his or her conviction in the Replaced Party for the offence referred to in the application or has been extinguished;
d) Compliance with the application is contrary to the security, public order or other essential interests of the Required Party;
e) The request for assistance is contrary to the legal order of the Redeemed Party or does not conform to the provisions of this Convention;
f) The investigation has been initiated for the purpose of processing or discriminating in any form a person or group of persons for reasons of race, sex, social status, nationality, religion, ideology or any other form of discrimination.
2. If the Requested Party refuses assistance, it shall inform the Requesting Party through its Central Authority, and the reasons on which it is founded, without prejudice to the provisions of Article 13.1.(b).
3. The competent authority of the Redeemed Party may refuse, condition or defer compliance with the application, where it is deemed to be an obstacle to an ongoing criminal procedure on its territory.
On these terms, the Requested Party shall consult the Requesting Party through the Central Authorities. If the Requesting Party accepts the conditional assistance, the request shall be fulfilled in accordance with the proposed manner.
EXECUTION OF THE SOLICUDES.
1. The request for assistance shall be made in writing.
2. The request may be made in advance by telex, facsimile, e-mail or other equivalent means, and must be confirmed by original document signed by the Requesting Party within 30 days of its formulation. The practical arrangements for applying this paragraph shall be laid down by Exchange of Letters.
3. The application shall contain the following information:
(a) Identification of the Competent Authority of the Requesting Party;
b) Description of the subject matter and the nature of the court proceedings, including the offences to which it relates;
c) Description of requested assistance measures;
d) Reasons for which measures are requested;
e) Reference to applicable legislation;
f) Identity of persons subject to judicial proceedings, where they are known;
g) The term within which the Requesting Party wants the request to be met.
4. Where necessary, and to the extent possible, the application shall also include:
a) Information about the identity and domicile of the persons to be notified and their relationship to the process;
(b) The exact description of the place to be inspected and the identification of the person under examination, as well as the goods subject to a precautionary or definitive measure;
c) The text of the interrogation to be formulated for the practice of the testimonial test in the Required Party, as well as the description of the manner in which any testimony or statement must be made and recorded;
d) The description of the special form and procedure in which the application must be complied with, if required;
e) Information on the payment of expenses to be assigned to the person whose presence is requested from the Required Party;
(f) The indication of the authorities of the Requesting Party that will participate in the process that is developed in the Required Party;
g) Any other information that may be of use to the Required Party to facilitate compliance with the request.
1. Compliance with the requests shall be made in accordance with the law of the Require Party and in accordance with the provisions of this Convention.
2. At the request of the Requesting Party, the Redeemed Party shall comply with the special forms and procedures indicated in the request, unless they are incompatible with its domestic law.
1. The Requested Party shall keep the request for legal assistance under reserve, unless its lifting is necessary to enforce the injunction.
2. If, for the fulfilment or execution of the requirement, the lifting of the reservation is necessary, the Requested Party shall request its approval from the Requesting Party, by written communication, without which the request shall not be executed.
3. The competent authority of the Redeemed Party may request that the information or evidence obtained under this Convention be of a confidential nature, in accordance with the conditions specified.
In such a case, the Requesting Party shall respect such conditions. If you cannot accept them, you will notify the Required Party, which will decide on the request for cooperation.
4. Unless prior authorisation from the Requested Party, the Requesting Party may only use the information or evidence obtained under this Convention in the investigation or procedure indicated in the application.
1. At the request of the Central Authority of the Requesting Party, the Central Authority of the Redeemed Party shall report within a reasonable time on the processing of the request.
2. The Central Authority of the Requested Party shall promptly report the outcome of the application and shall forward all information and evidence obtained to the Central Authority of the Requesting Party.
3. Where it is not possible to comply with the request, in whole or in part, the Central Authority of the Requested Party shall immediately inform the Central Authority of the Requesting Party and inform the reasons why its compliance was not possible, without prejudice to the provisions of Article 13.1.(b).
ARTICLE 11. EXPENSES. The Required Party shall be responsible for the costs of filing the application. The Requesting Party shall pay the expenses and fees for the experts, the extraordinary expenses resulting from the use of special forms or procedures and the travel expenses of the persons indicated in the articles 15 and 16.
FORMS OF ASSISTANCE.
1. The Central Authority of the Requesting Party shall transmit the request for notification to the competent authority of the Requesting Party to appear at a reasonable notice to the expected date of this.
2. If the notification is not made, it shall inform the competent authority of the Requesting Party, through the Central Authorities, of the reasons for which the notification could not be made.
1. At the request of the competent authority of the Requesting Party, the competent authority of the Required Party:
a) Provide copies of official documents, records and information accessible to the public;
(b) It may provide copies of documents and information to which the public does not have access, under the same conditions as those documents would be made available to its own authorities. If the assistance provided for in this paragraph is denied, the competent authority of the Redeemed Party shall not be required to express the grounds for refusal.
2. Documents or objects which have been sent in compliance with a request for legal assistance shall be returned by the competent authority of the Requesting Party, when the requested Party so requests.
1. Any person who is in the territory of the Require Party and who is asked to testify or to provide evidence, to present documents, antecedents or evidence under this Convention, shall be required to appear in accordance with the legislation of the Required Party, before the competent authority.
2. The Required Party shall inform in good time the place and date of receipt of the statement of evidence or expertise, or of the documents referred to, a background or evidence. Where necessary, the competent authorities shall consult each other through the Central Authorities for the purpose of setting a suitable date for the competent authorities of the Requesting and Required Party.
3. The competent authority of the Require Party shall authorize under its management the presence of the authorities indicated in the request during the performance of the cooperation measures and shall allow questions to be asked if it is not contrary to its legislation. The hearing shall take place in accordance with the procedures laid down by the legislation of the Required Party.
4. If the person referred to in paragraph 1 alleges immunity, privilege or incapacity under the legislation of the Redeemed Party, this shall be resolved by the competent authority of the Redeemed Party prior to the application, and shall be communicated to the Party Requesting through the Central Authority.
5. The documents, background and evidence provided by the declarants or obtained as a result of their declaration or on the occasion of the declaration shall be sent to the Requesting Party together with the declaration.
1. Where the Requesting Party requests the presence of a person on its territory to testify or to provide information or declaration, the Requested Party shall invite the declarant or expert to appear before the competent authority of the Party. Applicant.
2. The competent authority of the Redeemed Party shall record in writing the consent of a person whose presence is requested in the Requesting Party, and shall immediately inform the Central Authority of the Requesting Party about the response.
3. The Central Authority of the Requesting Party shall, when requesting that it appear, indicate the costs of removal and transfer.
1. At the request of the Requesting Party, and whenever the Requested Party agrees, it may be temporarily transferred to the Requesting Party, in order to provide testimony or assistance in investigations, to persons detained in the territory of the Republic of from the Required Party, as long as they consent to it.
2. The transfer shall be refused where, in the circumstances of the case, the competent authority of the Redeemed Party considers the shipment to be inconvenient, inter alia:
(a) The presence of the detained person is necessary in an ongoing criminal proceedings in the territory of the Redeemed Party;
b) The transfer may involve the prolongation of the preventive detention.
3. The Requesting Party shall keep the person transferred in custody and shall deliver it to the Redeemed Party within the period fixed by it, or prior to that, to the extent that its presence is no longer necessary.
4. The time when the person is outside the territory of the Redeemed Party will be computed for the purposes of preventive detention or penalty compliance.
5. When the Redeemed Party communicates to the Requesting Party that the person transferred no longer needs to be detained, that person shall be released and shall be subject to the general regime established in Article 15 of this Convention.
6. The detained person who does not give his consent to make statements in the terms of this article, shall not be subject, for this reason, to any sanction nor shall be subject to any such measure.
7. Where a party requests the other, in accordance with this Convention, to transfer a person of his nationality and its internal legal order to prevent the surrender to any title of its nationals, it shall inform the content of such provisions to the other Party, which shall decide on the appropriateness of the request.
1. The appearance of a person who consents to testify or provide assistance, as provided for in Articles 15 and 16, shall be conditional on the Requesting Party grant a temporary guarantee by which the person in your territory is unable to:
a) Stop or prosecute the person for offences prior to departure from the territory of the Reloved Party;
b) Citar the person to appear or testify in proceedings other than the one specified in the application.
2. The temporary guarantee shall cease when the person voluntarily extends his stay in the territory of the Requesting Party for more than 10 days from the moment that his presence is not necessary in that State, in accordance with the Party Required, except circumstances of force majeure or fortuitous case.
1. For the purposes of this Convention:
(a) "Product of the Crime" means goods of any kind derived or obtained directly or indirectly from the commission of a crime or its equivalent value;
b) "Instrument of Crime" means any good used or intended to be used for the commission of a crime.
2. The competent authority of a Party, through the Central Authorities, may request the identification and/or adoption of precautionary measures on instrument or product of a crime located in the territory of the another Party.
When it comes to the identification of the proceeds of the crime, the Required Party will report the search result.
3. Once the proceeds of the crime have been identified, or in the case of the instrument of the offence, at the request of the Requesting Party, the Redear Party, in so far as its domestic law permits, shall take the appropriate precautionary measures. on such goods.
4. A requirement under the preceding paragraph must include:
a) A copy of the precautionary measure;
b) A summary of the facts of the case, including a description of the offence, where and when it was committed and a reference to the relevant legal provisions;
(c) If possible, description of the goods, in respect of which the measure is intended to be carried out and its commercial value, and the relationship of the goods to the person against which it was initiated;
(d) An estimate of the sum to which the precautionary measure is intended to be applied and the basis of the calculation of the measure.
5. The requested party shall, in accordance with its law, resolve any request relating to the protection of third-party rights in good faith on the goods that are subject to the measures provided for in the preceding paragraphs.
6. The competent authorities of each Party shall promptly report on the exercise of any appeal or a decision taken in respect of the precautionary measure requested or adopted.
ARTICLE 19. OTHER COOPERATION MEASURES. The Parties may, in accordance with their domestic law, cooperate in the enforcement of definitive measures on goods linked to the commission of an unlawful act in any of the Parties.
ARTICLE 20. CUSTODY AND DISPOSAL OF PROPERTY. The State Party that has the instruments, the object or the fruits of the crime in its custody shall have the same in accordance with its internal law. To the extent permitted by its laws and in terms deemed appropriate, that State Party may distribute the seized goods or the proceeds of its sale with the other.
1. Liability for damages that may arise from the acts of their authorities in the execution of this Convention shall be governed by the domestic law of each Party.
2. One Party shall not be liable for any damages that may result from acts of the authorities of the other Party, in the formulation or execution of an application, in accordance with this Convention.
ARTICLE 22. AUTHENTICATION OF DOCUMENTS AND CERTIFICATES. Documents from one of the Parties, which are to be filed in the territory of the other Party, which are processed through the Central Authorities, shall not require authentication or any other analogous formality.
1. Any controversy arising from an application shall be resolved by consultation between the Central Authorities.
2. Any dispute arising between the Parties relating to the interpretation or application of this Convention shall be resolved by consultation between the Parties by diplomatic means.
1. The assistance provided for in this Convention shall not prevent each Party from assisting the other Party under the provisions of other international instruments in force between them.
2. This Convention shall not prevent the Parties from developing other forms of cooperation in accordance with their respective legal systems.
1. This Convention shall enter into force on the first day of the second month following the exchange of the Instruments of Ratification.
2. This Convention shall remain in force indefinitely.
3. This Convention may be denounced by any of the Parties at any time by means of a Diplomatic Note, which shall have effects six (6) months after the date of receipt by the other Party. The complaint will not affect any requests for assistance in progress.
Subscribed in Santa Fe de Bogotá, D. C., at twenty-nine (29) days of May of a thousand nine hundred and ninety-seven (1997) in two copies in Spanish, both texts being equally valid and authentic.
By the Republic of Colombia,
MARIA EMMA MEJIA VELEZ.
The Foreign Minister,
By the Kingdom of Spain,
COANA YAGO. "
The Ambassador of the Kingdom of Spain,
The undersigned Head of the Legal Office of the Ministry of Foreign Affairs of Colombia,
That the present reproduction is faithful photocopy taken from the original text of the "Convention of Judicial Cooperation in Criminal Matters between the Republic of Colombia and the Kingdom of Spain", signed in Santa Fe de Bogota on the twenty-nine day (29) of May nine hundred and ninety-seven (1997), which rests in the archives of the Legal Office of the Ministry of Foreign Affairs.
Dada in the city of Santa Fe de Bogota, D. C., at seventeen (17) days of July
of a thousand nine hundred and ninety-seven (1997).
HECTOR ADOLFO SYNTURA VARELA.
the Chief Legal Officer,
EXECUTIVE BRANCH OF PUBLIC POWER
REPUBLIC OF THE REPUBLIC
Santa Fe de Bogota, D. C., July 25, 1997
Approved. Submit to the consideration of the honorable National Congress for the constitutional effects.
(Fdo.) ERNESTO SAMPER PIZANO
(Fdo.) MARIA EMMA MEJIA VELEZ.
The Foreign Minister,
ARTICLE 1o. Approve the "Convention of Judicial Cooperation in Criminal Matters between the Republic of Colombia and the Kingdom of Spain", signed in the city of Santa Fe de Bogota, D. C., the twenty-nine (29) of May a thousand nine hundred and ninety-seven (1997).
ARTICLE 2o. In accordance with the provisions of Article 1o. of Law 7a. In 1944, the "Convention of Judicial Cooperation in Criminal Matters between the Republic of Colombia and the Kingdom of Spain", signed in the city of Santa Fe de Bogota, D. C., the twenty-nine (29) of May of a thousand nine hundred and ninety-seven (1997), which by the Article 1 of this law shall be adopted, shall bind the country from the date on which the international link with respect to it is perfected.
ARTICLE 3o. This law governs from the date of its publication.
AMYLKAR ACOSTA MEDINA
The President of the honorable Senate of the Republic,
PEDRO PUMAREJO VEGA.
The Secretary General of the honorable Senate of the Republic,
CARLOS SQUIRLA BALLESTEROS.
The President of the honorable House of Representatives,
DIEGO VIVAS TAFUR.
The Secretary General of the honorable House of Representatives,
COMMUNICATE AND COMPLY.
Execute a review of the Constitutional Court in accordance with Article 241-10 of the Political Constitution.
Dada en Santa Fe de Bogota, D. C., 4 August 1998.
ERNESTO SAMPER PIZANO
CAMILO REYES RODRIGUEZ.
The Foreign Minister,
ALMABEATRIZ RENGIFO LOPEZ.
The Minister of Justice and Law,