ACT 451 OF 1998
Official Journal No 43360 of August 11, 1998)
Through which the Convention was adopted Judicial Cooperation in Criminal Matters between the Republic of Colombia and the Kingdom of Spain, signed in the city of Santa Fe de Bogota, DC, the twenty-nine (29) May in 1997 (1997). Summary
THE CONGRESS OF COLOMBIA
having regard to the text of the "Convention on Mutual Assistance in Criminal Matters between the Republic of Colombia and the Kingdom of Spain", signed in the city of Santa Fe de Bogota, DC, the twenty-nine (29 ) May in 1997 (1997), which reads:
(to be transliterated: photocopy of the full text of that instrument, duly authenticated by the Head of the Legal Office of the Ministry of attached External relationships).
'CONVENTION OF 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 ties of friendship and cooperation that unite them;
Considering that the fight against crime requires joint action by States;
Recognizing that the fight against crime is a shared responsibility of the international community;
Aware that strengthening mechanisms for judicial cooperation and mutual assistance is needed to prevent the increase in criminal activities;
Eager to advance actions to control and suppress crime in all its manifestations, through coordinated actions and implementation of specific programs;
In observance of constitutional, legal and administrative norms of their States and respect for the principles of international law, especially sovereignty, territorial integrity and non-intervention and taking into consideration the recommendations of the United Nations on the matter .
Have agreed as follows: CHAPTER I.
ARTICLE 1o. AREA OF APPLICATION.
1. This Convention aims at mutual legal assistance in criminal matters between the competent authorities of the parties.
2. The parties mutual assistance in accordance with the provisions of this Convention and in strict compliance with their respective legal systems, for crime investigation and judicial cooperation in criminal matters related processes will be provided.
3. This Convention shall not empower authorities or individuals of the requesting party to undertake in the territory of the Requested Party functions, according to domestic laws, are reserved to the authorities, except in the case provided for in Article 14, paragraph 3o.
4. This Convention shall not apply to:
a) The detention of persons for the purpose of their extradition, or requests for extradition;
B) The enforcement of criminal judgments, including the transfer of sentenced persons for the purpose of complying sentence;
C) Assistance to individuals or third States.
5. This Agreement is intended solely for mutual legal assistance between the Contracting States. The provisions of this Convention shall not rise to a right for individuals in order to obtain, suppress or exclude any evidence or to impede the execution of a request.
. Dual criminality. Assistance will be provided even if the act for which proceeds in the Requesting Party is not considered a crime under the law of the Requested Party.
However, for the execution of judicial inspections, requisitions, searches and precautionary or final measures on goods, the assistance will be provided only if the law of the Requested Party provides it an offense for which he proceeds in Part requesting.
ARTICLE 3. SCOPE OF ASSISTANCE. Assistance shall include:
a) Service of Process;
B) Receipt and production or taking of evidence, such as testimony and statements, appraisals and inspections of persons, property and places;
C) Location and identification of persons;
D) Notification of persons and experts to appear voluntarily to testify or testimony of the Requesting Party;
E) Transfer of detainees in order to appear 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 concerning property, including the eventual transfer of the value of confiscated definitively;
H) Submission of documents and other test objects;
I) Any other form of assistance in accordance with the purposes of this Agreement as long as it is not inconsistent with the laws of the Requested State.
ARTICLE 4. CENTRAL AUTHORITIES.
1. The Central Authorities will submit and receive direct communication including requests for assistance to which the present Convention.
2. For the Kingdom of Spain the Central Authority is the Ministry of Justice. With regard to requests for assistance sent to Colombia, the Central Authority shall be the Attorney General's Office. With regard to requests for assistance made by Colombia, the Central Authority shall be the Attorney General's Office or the Ministry of Justice and Law.
The parties may, by exchange of letters, communicate changes in the designation of the Central Authorities.
3. Notwithstanding the foregoing, the parties may go, when deemed necessary, to diplomatic channels for presenting or receiving requests for assistance.
The 5th ITEM. AUTHORITIES FOR THE REQUEST FOR ASSISTANCE. Requests by a Central Authority in accordance with this Convention transmitted will be based on requests for assistance from competent authorities of the requesting Party responsible for the prosecution or investigation of crimes.
ARTICLE 6o. REFUSAL OF ASSISTANCE.
1. The Requested Party may refuse assistance if:
a) the request to an offense as such under military law but not under ordinary criminal law relates;
B) The request relates to an offense in the Requested Party is of a strictly political nature;
C) The person in connection with which the measure is sought has been acquitted or has served his sentence in the Requested Party for the offense mentioned in the application or it is extinguished;
D) Compliance of the application is contrary to security, public order or other essential interests of the Requested Party;
E) The request for assistance is contrary to the law of the Requested Party or not in accordance with the provisions of this Convention;
F) The investigation has been initiated with the purpose of prosecuting or discriminating in any way against a person or group of persons because 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 based, without prejudice to the provisions of Article 13.1.b).
3. The competent authority of the Requested Party may deny, condition or suspend the performance of the application, when considered impeding ongoing criminal proceedings in their territory.
On these conditions the Requested Party shall consult the requesting Party through the Central Authorities. If the Requesting Party accepts assistance conditional, the request shall be executed in accordance with the manner proposed.
EXECUTION OF SOLICUTUDES.
ARTICLE 7. FORM AND CONTENT OF THE APPLICATION.
1. The request for assistance must be made in writing.
2. The application may be anticipated by telex, facsimile, electronic mail or other equivalent means it must be confirmed by original document signed by the requesting Party within 30 days of its formulation. Exchange of Notes practical arrangements for implementing this paragraph shall be established.
3. The request shall contain the following information:
a) identification of the competent authority of the Requesting Party;
B) Description of the issue and the nature of the legal proceedings, including the offenses to which it refers;
C) description of the measures requested assistance;
D) Reasons why the measures are requested;
E) Reference to the applicable law;
F) Identity of persons subject to legal proceedings, as they are known;
G) Term within which the Requesting Party wishes the request to be met.
4. Where necessary, and as far as possible, the request shall also include:
a) Information on the identity and address of the persons to be notified and their relationship to the process;
B) The exact description of the place to inspect and identify the person to be examined, as well as property subject to a precautionary or definitive measure;
C) The text of the questions to be formulated for the practice of the testimony in the Requested Party and the description of the way shall be made and recorded any testimony or statement;
D) A description of the way and special procedure in which applications must comply, if they were required;
E) Information on the payment of costs to be allocated to the person whose presence is requested by the Requested Party;
F) An indication of the authorities of the requesting Party to participate in the process taking place in the Requested Party;
G) Any other information that may be useful to the Requested Party to facilitate the execution of the request.
Article 8. APPLICABLE LAW.
1. Fulfilling requests be made according to the law of the Requested Party and in accordance with the provisions of this Convention.
2. At the request of the Requesting Party, the Requested Party shall execute the assistance in accordance with the special forms and procedures indicated in the request, unless they are incompatible with its domestic law.
Article 9. CONFIDENTIALITY AND LIMITATIONS ON THE USE OF INFORMATION.
1. The Requested Party shall keep reserves the request for judicial assistance, unless its disclosure is necessary to execute the request.
2. If for compliance or enforcement of the requirement necessary to lift the reservation, the Requested Party shall request approval to the Requesting Party, by written communication, without which the application will not run.
3. The competent authority of the Requested Party may request that information or evidence obtained under this Agreement be kept confidential, in accordance with the conditions specified.
In this case, the Requesting Party shall observe such conditions. If you can not accept, it shall notify the Requested Party, which will decide on the request for cooperation.
4. Without prior authorization of the Requested Party, the Requesting Party may only use information or evidence obtained under this Convention in the investigation or proceeding indicated in the request.
ARTICLE 10. INFORMATION ON THE APPLICATION PROCESS.
1. At the request of the Central Authority of the Requesting Party, the Central Authority of the Requested Party shall report within a reasonable time on the processing of the application.
2. The Central Authority of the Requested Party promptly inform the result of the execution of the request and send all the information and evidence obtained to the Central Authority of the Requesting Party.
3. Where it is not possible to fulfill 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 it was not possible compliance, without prejudice Article 13.1.b).
ARTICLE 11 EXPENSES
. The Requested Party shall provide for the cost of filling out the application. The Requesting Party shall pay the expenses and fees for experts, the extraordinary expenses resulting from the use of forms or procedures and the travel expenses of the persons mentioned in Articles 15 and 16. CHAPTER III
Forms of assistance.
ARTICLE 12. NOTICES.
1. The Central Authority of the Requesting Party shall transmit the request for a person to appear before the competent authority of the Requesting Party a reasonable time before the scheduled date for this.
2. If notification is not made, it shall inform, through the Central Authorities, the competent authority of the Requesting Party of the reasons why it could not fill.
ARTICLE 13. DELIVERY AND RETURN OF OFFICIAL DOCUMENTS.
1. At the request of the competent authority of the requesting Party, the competent authority of the Requested Party:
a) Provide copies of official documents, records and information accessible to the public;
B) May provide copies of documents and information to which the public does not have access, under the same conditions in which those documents would be made available by its own authorities. If the assistance provided for in this paragraph is refused, the competent authority of the Requested Party shall not be obliged to state the reasons for refusal.
2. Documents or objects that had been sent in response to a request for judicial assistance shall be returned by the competent authority of the Requesting Party, the Requested Party when so requested.
ARTICLE 14. ASSISTANCE IN PART REQUIRED.
1. Any person who is in the territory of the Requested Party and be required to testify or expertise, submit documents, records or evidence under this Agreement must be brought in accordance with the law of the Requested Party, with the competent authority.
2. The Requested Party shall inform sufficiently in advance the place and date of the declaration witnessed or expertise, or the aforementioned documents, records or evidence will be received. Where necessary, the competent authorities shall consult through Central Authorities, for purposes of fixing a convenient for the competent authorities of the requesting Party and required date.
3. The competent authority of the Requested Party shall under his direction, the presence of the authorities indicated in the request during the execution of measures of cooperation and allow questions if not contrary to its law. The hearing will take place according to the procedures established by the law of the Requested Party.
4. If the person referred to in paragraph 1 claims immunity, privilege or incapacity under the law of the Requested Party, this will be decided by the competent authority of the requested Party prior to the execution of the request, and the Requesting Party shall be communicated through the Central Authority.
5. The documents, records and evidence provided by declarants or obtained as a result of his statement or on the occasion thereof, will be sent to the requesting Party together with the declaration.
ARTICLE 15. ASSISTANCE requesting party.
1. When the Requesting Party requests the presence of a person in its territory to testify or provide information or statement, the Requested Party shall invite the declarant or expert to appear before the competent authority of the requesting Party.
2. The competent authority of the requested 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 of the response.
3. When requesting to appear, the Central Authority of the Requesting Party shall indicate the travel expenses and subsistence charge.
ARTICLE 16 APPEARANCE OF DETAINEES.
1. At the request of the requesting Party, and provided the requested Party access, may be temporarily transferred to the Requesting Party in order to give evidence or assist in investigations, detainees in the territory of the Requested Party, provided that so desire.
2. The transfer will be denied when, according to the circumstances, the competent authority of the Requested Party considers inconvenient transfer, including when:
a) The presence of the detained person is required in criminal proceedings under way in the territory of the Requested Party;
B) The transfer may involve the extension of police custody.
3. The Requesting Party shall keep the person transferred custody and delivered to the requested Party within the period fixed by or before that, to the extent that they no longer were required his presence.
4. The time in which the person is outside the territory of the Requested Party shall be computed for purposes of custody or serving the sentence.
5. When the requested Party informs the requesting Party that the transferred person no longer needs to be detained, that person shall be released and will be subject to the general rules laid down in Article 15 of this Convention.
6. The detained person does not give consent to make statements in the terms of this Article shall not be subject, for this reason, any penalty or be subjected to any comminatory measure.
7. When a party requests the other, under this Convention, the transfer of a person of his nationality and its domestic legal system prevented delivery to any title of its nationals, it shall inform the content of those provisions to the other Party, to decide on the appropriateness of the request.
ARTICLE 17. TEMPORARY
1. The appearance of a person who consents to give evidence or assist, in accordance with Articles 15 and 16, will be conditional on the Requesting Party may grant a temporary guarantee that it can not, while the person is in its territory :
a) Stop or judge the person before leaving the territory of the Requested Party crimes;
B) Summon the person to appear or testify in different procedure specified in the request.
2. The temporary guarantee shall cease when the person voluntarily prolongs his stay in the territory of the requesting Party for more than 10 days from the time when his presence is not necessary in that State, in accordance with the statement of the Requested Party, except circumstances of force majeure.
ARTICLE 18. PRECAUTIONARY MEASURES.
1. For the purposes of this Convention:
a) "Proceeds of crime" means any property derived from or obtained directly or indirectly from the commission of an offense or its equivalent;
B) "Instrument of crime" means any property 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 goods instrument or proceeds of crime that are located in the territory of the other Party.
When it comes to the identification of proceeds of crime, the Requested Party shall report on the outcome of the search.
3. After identifying the proceeds of crime, or in the case of an instrument of crime, at the request of the Requesting Party, the Requested Party, to the extent that its internal legislation permits, take the appropriate precautionary measures such property.
4. A request made under the preceding paragraph shall include:
a) A copy of the injunction;
B) A summary of the facts of the case including a description of the offense, where and when it was committed and a reference to the relevant legal provisions;
C) If possible, a description of the goods, for which is intended to make the measure and its commercial value and their relationship with the person against whom began;
D) An estimate of the amount to which it intends to apply the precautionary measure and the basis of calculation thereof.
5. The requested party shall decide, by law, any request concerning the protection of rights of bona fide third parties on goods that are the subject of the measures provided for in the preceding paragraphs.
6. The competent authorities of each Party shall promptly inform the exercise of any action or a decision regarding the precautionary measure requested or adopted.
ARTICLE 19. OTHER MEASURES OF COOPERATION. The Parties, in accordance with its domestic law, may provide cooperation in fulfilling definitive measures on assets linked to the commission of an unlawful act in any of the Parties.
ARTICLE 20 CUSTODY AND DISPOSAL OF GOODS. The State party has in its custody the instruments, object or proceeds of a crime, you have them in accordance with the provisions of its internal law. To the extent permitted by its laws and the terms deemed appropriate, that State Party may share with the other confiscated property or the proceeds of sale.
ARTICLE 21. RESPONSIBILITY.
1. Liability for damages resulting from acts of their authorities in the execution of this Agreement shall be governed by the domestic law of each Party.
2. Party shall not be liable for damages that may result from acts of the authorities of the other Party in the formulation or execution of a request pursuant to this Agreement.
ARTICLE 22 AUTHENTICATION OF DOCUMENTS AND CERTIFICATES. Documents from one of the Parties, to be submitted in the territory of the other Party, which are processed through the Central Authorities shall not require authentication or any other similar formality.
ARTICLE 23. DISPUTE.
1. Any dispute arising from a request shall be resolved by consultation between the central authorities.
2. Any dispute between the Parties relating to the interpretation or application of this Agreement shall be resolved by consultation between the Parties through diplomatic channels.
ARTICLE 24. COMPATIBILITY WITH OTHER TREATIES, AGREEMENTS OR OTHER FORMS OF COOPERATION.
1. The assistance provided for in this Convention shall not prevent each Party shall assist the other under the provisions of other international instruments in force between them.
2. This Agreement shall not prevent the Parties the possibility of developing other forms of cooperation in accordance with their respective legal systems.
ARTICLE 25. ENTRY INTO FORCE AND DURATION.
1. This Agreement shall enter into force on the first day of the second month after the exchange of the instruments of ratification.
2. This Agreement shall remain in force indefinitely.
3. This Agreement may be terminated by either party at any time, through diplomatic note, which shall take effect six (6) months after the date of receipt by the other Party. The denunciation shall not affect ongoing requests for assistance.
Done in Santa Fe de Bogota, DC, at twenty (29) days of May in 1997 (1997) in two copies in Spanish, both being equally valid and authentic.
For the Republic of Colombia, Maria Emma Mejia
The Minister of Foreign Affairs,
For the Kingdom of Spain, PICO DE YAGO
Ambassador of the Kingdom of Spain,
The undersigned Head of the Legal Office of the Ministry of Foreign Affairs of Colombia, DECLARES
That this reproduction is faithful copy taken from the original text "Convention on Mutual Assistance in Criminal Matters between the Republic of Colombia and the Kingdom of Spain," signed in Santa Fe de Bogota on twenty-nine (29) May in 1997 (1997), which rests on files the Legal Office of the Ministry of Foreign Affairs.
Given in the city of Santa Fe de Bogota, DC, at seventeen (17) days of July
of in 1997 (1997).
VARELA HECTOR ADOLFO Sintura.
Chief Legal Office, RAMA
PUBLIC POWER EXECUTIVE PRESIDENCY OF THE REPUBLIC
Santa Fe de Bogota, DC, July 25, 1997 Approved
. Submit to the consideration of the honorable National Congress for constitutional purposes.
Ernesto Samper Pizano (Sgd.) VÉLEZ Maria Emma Mejia.
The Minister of Foreign Affairs, DECREES
ARTICLE 1o. Approval of the "Convention on Mutual Assistance in Criminal Matters between the Republic of Colombia and the Kingdom of Spain", signed in the city of Santa Fe de Bogota, DC, the twenty-nine (29) May in 1997 (1997) . Article 2.
. In accordance with the provisions of article 1. 7a Act. 1944, the "Convention on Mutual Assistance in Criminal Matters between the Republic of Colombia and the Kingdom of Spain", signed in the city of Santa Fe de Bogota, DC, the twenty-nine (29) May in 1997 ( 1997), that the first article of this law is passed, will force the country from the date the international link is perfect therefrom.
ARTICLE 3. This law applies from the date of publication. MEDINA ACOSTA Amylkar
The President of the honorable Senate,
PUMAREJO PEDRO VEGA.
The Secretary General of the honorable Senate,
CARLOS ARDILA BALLESTEROS.
The President of the honorable House of Representatives, DIEGO VIVAS
The Secretary General of the honorable House of Representatives,
REPUBLIC OF COLOMBIA - NATIONAL GOVERNMENT
COMMUNICATE AND COMPLY. Run
prior review by the Constitutional Court, pursuant to Article 241-10 of the Constitution.
Given in Santa Fe de Bogota, DC, on August 4, 1998.
Ernesto Samper Pizano Camilo Reyes Rodriguez.
The Minister of Foreign Affairs, Almabeatriz
The Minister of Justice and Law,