457 OF 1998
Official Journal No. 43,360, dated August 11, 1998
By means of which the "Amending Protocol of the Treaty of the Creation of the Court of Justice of the Cartagena Agreement" is approved, signed in the city of Cochabamba, Bolivia, at twenty-eight (28) days of the month of May thousand nine hundred and ninety-six (1996).
Having regard to the text of the "amending protocol of the Treaty of Creation of the Court of Justice of the Cartagena Agreement", signed in the city of Cochabamba, Bolivia, at twenty-eight (28) days of the month of May of a thousand nine hundred and ninety-six (1996).
(To be transcribed: photocopies of the full text of the international instrument mentioned, duly authenticated by the Head of the Legal Office of the Ministry of Foreign Affairs).
AMENDING PROTOCOL TO THE TREATY ESTABLISHING THE COURT OF JUSTICE OF THE CARTAGENA AGREEMENT
The Governments of Bolivia, Colombia, Ecuador, Peru and Venezuela, taking into account the modifications introduced by the Amending Protocol to the Andean Subregional Integration Agreement (Cartagena Agreement), approved in Trujillo, Peru on 10 June. March 1996.
Conen, to conclude the following Protocol of the Treaty of Creation of the Court of Justice of the Cartagena Agreement:
First. Amend the Treaty of Creation of the Court of Justice of the Cartagena Agreement, according to the following text:
" Treaty of Justice of the Court of Justice
from the Andean Community
OF THE ANDEAN COMMUNITY LEGAL ORDER.
ARTICLE 1o. The legal order of the Andean Community comprises:
a) The Cartagena Agreement, its additional protocols and instruments;
(b) This Treaty and its amending Protocols;
c) Decisions of the Andean Council of Foreign Ministers and the Commission of the Andean Community;
(d) The Resolutions of the General Secretariat of the Andean Community; and
e) The Industrial Complementation Conventions and others to be adopted by the Member Countries among themselves and in the framework of the Andean subregional integration process.
ARTICLE 2o. Decisions oblige member countries from the date they are approved by the Andean Council of Foreign Ministers or the Andean Community Commission.
ARTICLE 3o. The decisions of the Andean Council of Ministers of Foreign Affairs or of the Commission and the Resolutions of the General Secretariat will be directly applicable in the member countries from the the date of their publication in the Official Gazette of the Agreement, unless the latter points to a later date.
When their text so provides, decisions shall require transposition into national law, by means of an express act indicating the date of its entry into force in each member country.
ARTICLE 4. Member countries are required to take the necessary measures to ensure compliance with the rules that make up the legal order of the Andean community.
They undertake, likewise, not to adopt or employ any measure that is contrary to those rules or which in any way impedes their application.
OF THE COURT ' S CREATION AND ORGANIZATION.
ARTICLE 5o. Create the court of justice of the Andean Community as a court of law of the Andean Community, with the organization and the powers established in this Treaty, and its protocols modifiers.
ARTICLE 6o. THE COURT IS BASED IN THE CITY OF QUITO, ECUADOR. The Tribunal is composed of five judges, who must be nationals of origin of the member countries, enjoy high moral consideration and meet the conditions required in their country for the exercise of the highest judicial functions or be jurisconsults of notorious jurisdiction.
Judges shall enjoy full independence in the performance of their duties, may not carry out other professional activities, remunerated or not, except those of a teaching nature, and shall refrain from any action incompatible with the character of his position.
The Andean Council of Foreign Ministers, in consultation with the Tribunal, may modify the number of magistrates and create the position of general counsel, in the number and with the powers to be established in the statute to referred to in article 13.
ARTICLE 7o. THE MAGISTRATES SHALL BE APPOINTED BY EACH MEMBER COUNTRY AND BY THE UNANIMITY OF THE ACCREDITED PLENIPOTENTIARIES FOR THAT PURPOSE. The Government of the host country shall convene the plenipotentiaries.
ARTICLE 8o. The magistrates will be appointed for a term of six years, will be partially renewed every three years and may be re-elected for one time.
ARTICLE 9o. Each magistrate will have a first and second alternates that will replace him, in his order, in the cases of permanent or temporary absence, as well as of impairment or recusal, in accordance with what is set out in the Statute of the Court.
The substitutes must meet the same qualities as the principal. They shall be appointed on the same date and form and for the same period as those.
ARTICLE 10. The magistrates may be removed at the request of the Government of a member country, only when in the exercise of their duties they have incurred in serious misconduct provided for in the Statute of the Court and in accordance with the procedure laid down. To this end, the governments of the Member States shall appoint plenipotentiaries, who, after convening the Government of the host country, shall resolve the case in a special and unanimous meeting.
ARTICLE 11. At the end of his term, the magistrate shall continue in the exercise of his office until the date on which he takes possession who replaces him.
ARTICLE 12. Member countries are obliged to grant the Court all the necessary facilities for the proper performance of their duties.
The Tribunal and its magistrates shall enjoy in the territory of the countries members of the immunities recognized by international uses, and in particular by the Vienna Convention on Diplomatic Relations, in respect of the inviolability of their files and their official correspondence, and in all matters relating to civil and criminal jurisdictions, with the exceptions set out in Article 31 of the Vienna Convention.
The premises of the Tribunal are inviolable and their assets and assets are granted immunity against any judicial proceedings, unless they expressly renounce it. However, such a waiver shall not apply to any enforceable judicial measure.
The magistrates, the Registrar of the Tribunal and the officials to whom he designates with the character of international shall enjoy in the territory of the country the seat of the immunities and privileges corresponding to its category. For these purposes, the magistrates shall have a category equivalent to that of heads of mission and other officials established by common agreement between the Court and the Government of the host country.
ARTICLE 13. The amendments to the Statute of the Court of Justice of the Cartagena Agreement, approved by Decision 184, will be adopted by the Andean Council of Foreign Ministers, on a proposal from the of the Commission and in consultation with the Court.
ARTICLE 14. IT SHALL BE FOR THE COURT TO ISSUE ITS RULES OF PROCEDURE. The Court shall appoint its Registrar and the staff necessary for the performance of its duties.
ARTICLE 15. The Tribunal will present annual reports to the Andean Presidential Council, the Andean Council of Foreign Ministers and the Commission.
ARTICLE 16. THE ANDEAN COMMUNITY COMMISSION WILL APPROVE THE COURT ' S BUDGET ANNUALLY. For this purpose, the President of the Court will send each year, on a timely basis, the corresponding draft budget.
OF THE COURT ' S COMPETENCIES.
OF THE NULLITY ACTION.
ARTICLE 17. It is for the Court to declare the nullity of the decisions of the Andean Council of Foreign Ministers, of the Commission of the Andean Community, of the resolutions of the General Secretariat and of the Conventions referred to in Article 1e), which are either dictated or agreed upon in violation of the rules that make up the legal order of the Andean Community, even by misuse of power, when they are challenged by some member country, the Andean Council of Foreign Ministers, the Commission of the Andean Community, the General Secretariat or natural or legal persons under the conditions provided for in Article 19 of this Treaty.
ARTICLE 18. Member countries may only attempt the action of nullity in relation to those decisions or conventions that have not been approved with their affirmative vote.
ARTICLE 19. Natural and legal persons may attempt the action of nullity against the decisions of the Andean Council of Foreign Ministers, of the Commission of the Andean Community, of the resolutions of the General Secretariat or of the Conventions affecting their subjective rights or their legitimate interests.
ARTICLE 20. The action for annulment shall be attempted before the Court within two years of the date of entry into force of the decision of the Andean Council of Foreign Ministers, the Commission of the Andean Community of the resolution of the General Secretariat or of the Convention which is the subject of such action.
Although the time limit provided for in the preceding paragraph has expired, any party to a dispute brought before the national courts or tribunals may apply to such judges or courts for the inapplicability of the decision or judgment to the court. specific case, provided that the case is related to the application of such a rule and its validity is questioned, in accordance with the provisions of Article 17.
Filed the application for inapplicability, the national judge will consult on the legality of the decision, resolution or agreement, to the Court of Justice of the Andean Community and will suspend the process until receiving the providence of the same, the one that will be of mandatory application in the statement of that.
ARTICLE 21. The interposition of the nullity action shall not affect the effectiveness or validity of the contested rule or convention.
However, the Court may, at the request of the applicant, if it considers it necessary, to order the provisional suspension of the execution of the decision, judgment or convention accused of nullity or to provide for other measures. (a) precautionary, if it causes or could cause the plaintiff to be irreparable or difficult to repair by means of the final judgment.
ARTICLE 22. When the Court declares the total or partial nullity of the contested decision, resolution or convention, it shall state the effects of the judgment in time.
The body of the Andean Community whose act has been annulled shall take the necessary provisions to ensure effective compliance with the judgment within the time limit set by the court itself.
OF THE NON-COMPLIANCE ACTION.
ARTICLE 23. when the general secretary considers that a member country has incurred non-compliance with obligations arising out of the rules or conventions that make up the order The legal basis for the Andean Community will be written in writing. The Member State shall reply within the time limit set by the General Secretariat, in accordance with the seriousness of the case, which shall not exceed 60 days. Upon receipt of the reply or the deadline, the General Secretariat shall, in accordance with its Rules of Procedure and within the next 15 days, deliver an opinion on the state of compliance with such obligations, which shall be reasoned.
If the opinion is of non-compliance and the member country persists in the conduct which has been the subject of observations, the General Secretariat shall, as soon as possible, request the statement of the court. The Member State concerned may accede to the action of the General Secretariat.
ARTICLE 24. When a member country considers that another member country has incurred non-compliance with obligations arising from the rules that make up the legal order of the Andean Community, it will raise the Case-law of the General Secretariat with the respective antecedents, in order for the General Secretariat to take the necessary steps to remedy the non-compliance, within the period referred to in the first paragraph of the previous article. Received the reply and the deadline expired without having obtained positive results, the General Secretariat in accordance with its rules of procedure and within the next 15 days will deliver an opinion on the state of compliance of the obligations, which shall be motivated.
If the opinion is non-compliance and the requested member country persists in the conduct which is the subject of the complaint, the General Secretariat shall request the Court's decision. If the General Secretariat does not attempt the action within 60 days of the opinion being delivered, the claimant country may refer directly to the Court.
If the General Secretariat does not issue its opinion within seventy-five days after the date of filing of the complaint or the opinion is not a non-compliance, the claimant country may refer directly to the Tribunal.
ARTICLE 25. The natural or legal persons affected by their rights for the non-compliance of a member country, may go to the General Secretariat and the Court, subject to the procedure provided for in the Article 24.
The action attempted in accordance with the preceding paragraph, excludes the possibility of simultaneously going to the path provided for in article 31, for the same reason.
ARTICLE 26. In cases where a verification resolution of the existence of a lien or restriction has been issued or in the case of a case of flagrant non-compliance, the General Secretariat, In accordance with its rules of procedure, it shall, as soon as possible, issue a reasoned opinion, from which it or the Member State concerned, may refer directly to the Court.
ARTICLE 27. If the judgment of the Tribunal is of non-compliance, the member country whose conduct has been the subject of it, shall be obliged to take the necessary measures for its compliance within a period of time. greater than ninety days after notification.
If that Member State does not comply with the obligation set out in the preceding paragraph, the Court, summarily and after the opinion of the General Secretariat, shall determine the limits within which the country claims or any other Member State may restrict or suspend, in whole or in part, the benefits of the Cartagena Agreement which benefit the Member State concerned.
In any case, the Court may order the adoption of other measures if the restriction or suspension of the advantages of the Cartagena Agreement will aggravate the situation that is sought to resolve or not be effective in this regard. The Statute of the Court shall specify the conditions and limits for the exercise of this attribution.
ARTICLE 28. THE COURT, ACTING THROUGH THE GENERAL SECRETARIAT, SHALL COMMUNICATE ITS DETERMINATION TO THE MEMBER COUNTRIES. The Court shall, before final judgment, at the request of the applicant and, if it considers it necessary, order the provisional suspension of the allegedly infringing measure, if it causes or could cause the applicant or the Subregion to be irreparable or otherwise difficult to repair.
ARTICLE 29. The judgments handed down in actions of non-compliance are reviewed by the same Court, at the request of a party, which was founded on some fact that could have had a decisive influence on the outcome of the process, provided that the fact has been unknown at the date of issue of the judgment for which the review is requested.
The review request must be filed within ninety days of the day of discovery of the event and, in any event, within the year following the date of the judgment.
ARTICLE 30. The judgment of failure of the Court, in the cases provided for in Article 25, shall constitute a legal title and sufficient for the individual to be able to ask the national court for compensation for damages which it corresponds to.
ARTICLE 31. Natural or legal persons shall have the right to go before the competent national courts, in accordance with the provisions of national law, when the member countries fail to comply with the provisions of the provided in article 4or. of this Treaty, in cases where their rights are affected by such non-compliance.
FOR PRELIMINARY INTERPRETATION.
ARTICLE 32. Corresponding to the Court for a preliminary interpretation of the rules that make up the legal order of the Andean Community, in order to ensure its application uniform in the territory of the Member States.
ARTICLE 33. National judges who are aware of a process in which one of the rules that make up the legal order of the Andean Community must be applied or contravened, may request, directly, the Court's interpretation of those rules, provided that the judgment is capable of internal law. If I have the opportunity to deliver a judgment without the Court's interpretation, the judge must decide the process.
In all proceedings in which the judgment is not liable to internal law, the judge shall suspend the proceedings and shall request directly from office or at the request of a party the interpretation of the Court.
ARTICLE 34. IN ITS INTERPRETATION, THE COURT MUST CONFINE ITSELF TO SPECIFYING THE CONTENT AND SCOPE OF THE RULES THAT MAKE UP THE LEGAL ORDER OF THE ANDEAN COMMUNITY, REFERRING TO THE SPECIFIC CASE. The Court may not interpret the content and scope of the national law or to describe the facts of the proceedings, however, which may refer to them where this is indispensable for the purposes of the interpretation requested.
ARTICLE 35. The judge who knows the proceedings must take the Court's interpretation in his judgment.
ARTICLE 36. The member countries of the Andean Community shall ensure compliance with the provisions of this Treaty and in particular the observance by national judges of the provisions of this Treaty. This Section.
OF THE DEFAULT OR INACTIVITY RESOURCE.
ARTICLE 37. When the Andean Council of Ministers of Foreign Affairs, the Commission of the Andean Community or the General Secretariat, they refrain from fulfilling an activity to which are expressly required by the legal order of the Andean Community, such organs, member countries or natural or legal persons under the conditions of Article 19 of this Treaty, may require compliance with these obligations.
If within the following thirty days the application is not accepted, the applicant may refer to the Court of Justice of the Andean Community for a ruling on the case.
Within thirty days after the date of admission of the appeal, the Court shall issue the relevant providence, on the basis of the existing technical documentation, the background of the case and the explanations of the body which is the subject of the appeal. Such providence, which shall be published in the Official Gazette of the Cartagena Agreement, shall indicate the form, modality and time within which the body concerned shall comply with its obligation.