LAW 761 2002
Official Gazette No. 44,889 of August 5, 2002 PUBLIC POWER
LEGISLATIVE BRANCH Through which approved the "Treaty between the Republic of Colombia and the People's Republic of China on Judicial Assistance in Criminal Matters ", signed in Beijing, the fourteen (14) May in 1999 (1999). Summary
having regard to the text of the "Agreement between the Republic of Colombia and the People's Republic of China on Judicial Assistance in Criminal Matters", signed at Beijing, the fourteen (14) May 1900 ninety-nine (1999), which reads:
(to be transliterated: photocopy of the full text of that instrument is attached).
'TREATY BETWEEN THE REPUBLIC OF COLOMBIA AND THE REPUBLIC OF CHINA ON JUDICIAL ASSISTANCE IN CRIMINAL MATTERS
The Republic of Colombia and the People's Republic of China, hereinafter "Parties".
Recognizing that the fight against crime requires joint action by States;
Considering the ties of friendship and cooperation between the two countries;
In observance of constitutional, legal and regulatory norms of their States and respect for the principles of international law;
Reaffirming the fundamental principle of mutual respect for national sovereignty, equality and mutual benefit;
In order to promote and intensify cooperation between the two States on mutual assistance in criminal matters,
AGREED ARTICLE 1. SCOPE.
1. The Parties undertake to provide the broadest mutual legal assistance in criminal matters, in accordance with the provisions of this Treaty and those of their respective legal systems.
2. This Treaty shall not apply to:
B) The execution of criminal sentences including the transfer of sentenced persons for the purpose of complying criminal sentence.
3. This Treaty is intended solely for the purpose of mutual legal assistance between the Contracting Parties. The provisions of this Treaty shall not create any right for individuals to obtain or exclude any evidence or to impede the execution of a request.
ARTICLE 2. CONTENTS OF ASSISTANCE.
1. Assistance shall include:
a) the delivery and service of documents;
B) The taking of statements from persons;
C) The provision of information, documents, records and items of evidence;
D) Obtaining and providing expert evaluations;
E) Location and identification of persons;
F) examining objects and sites;
G) Execution of requests for investigation, search, detention, kidnapping and other interim measures;
H) Assistance in confiscation procedures;
I) Make available to the competent authorities of the requesting Party people, including detainees, to give evidence or assist in the investigation;
J) Notification of results of the processes developed in criminal matters, exchange of information on i re laws and regulations, and supply criminal record;
K) Any other form of assistance in accordance with the purposes of this Treaty if not inconsistent with the laws of the Requested Party.
ARTICLE 3 CENTRAL AUTHORITIES.
1. Requests for assistance under this Treaty are formulated, and their answers will be sent and received through the Central Authorities; which they shall communicate directly between them.
2. Central Authorities indicated in paragraph 1 are:
a) In relation to requests for assistance received by the Republic of Colombia, the Central Authority shall be the Attorney General's Office. In relation to requests for judicial assistance submitted by the Republic of Colombia, the Central Authority shall be the Attorney General's Office or the Ministry of Justice and Law;
B) For the PRC, the Supreme People's Procuratorate and the Ministry of Justice.
3. The Parties shall communicate through diplomatic channels any changes regarding the designation of the Central Authorities.
ARTICLE 4. DENIAL OR POSTPONEMENT OF ASSISTANCE.
1. The Requested Party may refuse assistance when it determines that:
a) the application concerns a political or strictly military offense;
B) The execution of the request harms the sovereignty, security, public order or other essential interests of the Requested Party;
C) there are sufficient grounds to believe that the request for assistance has been made with the purpose of investigating, prosecuting, punishing, start another process or discriminate in any way to a person's race, sex, religion, nationality, political opinion political or social condition;
D) The accused or suspect linked in the application is being prosecuted criminally or final judgment has been issued for the same acts in the territory of the requested Party;
E) The request relates to conduct that would not constitute an offense under the laws in the territory of the Requested Party, noting that the Parties may agree to provide assistance for a particular offense or category of offenses, regardless that the conduct would constitute an offense under the laws in the territory of both Parties.
2. Assistance may be postponed by the Requested Party if execution of the application interferes with an ongoing investigation, prosecution or proceeding underway in the Requested Party.
3. Before refusing a request or postponing its execution, the Requested Party shall consider whether assistance may be granted subject to such conditions as it deems appropriate. If the Requesting Party accepts assistance subject to these conditions, it shall comply with them.
4. If the Requested Party refuses or postpones assistance, it shall inform the Requesting Party of the reasons for the refusal or postponement.
ARTICLE 5. CONTENTS OF APPLICATIONS.
1. A request for assistance shall contain:
a) The name of the competent authority that made the request;
B) The purpose of the request and a description of the assistance sought;
C) The description of the subject matter of the criminal proceedings, including a summary of the relevant facts and laws, and
d) any time limit within which compliance with the request is required.
2. Requests for assistance as necessary or possible, shall also include:
a) information on the identity and location of the person from whom any evidence is sought;
B) Information on the identity and location of the person who will be notified and the relationship of that person to the criminal proceedings;
C) description of the place to inspect and property requesting investigation, immobilized, sequester or other provisional measure is taken;
D) A description of any particular procedure or requirement that wish to continue to run the application;
E) Information regarding allowances, expenses and fees to which entitled the person is asked to appear in the Requesting Party;
F) The need for confidentiality and the reasons for it, and
g) Any other information as may be necessary for the proper execution of the request.
3. If the Requested Party considers that the content of the application is not sufficient so as to allow address the issue, it may request additional information.
4. The request for assistance must be made in writing and shall be duly signed or stamped by the issuing authority. In urgent circumstances may be anticipated by telex, facsimile, or equivalent, it must be confirmed by original document signed or stamped by the Requesting Party as soon as possible.
Article 6. EXECUTION OF REQUESTS.
1. The competent authorities of the Requested Party shall implement the request for assistance in accordance with its legal system.
2. The request for assistance may be executed by the Requested Party in the manner requested by the Requesting Party, provided it is not contrary to their domestic law.
3. Where he can not 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.
ARTICLE 7. CONFIDENTIALITY AND LIMITATIONS ON USE OF THE INFORMATION.
1. The Requested Party shall keep reserves the request for judicial assistance and its annexes as well as the fact that assistance was provided. When unable to comply with the request, under penalty of violating the principle of confidentiality, the Requested Party shall inform the Requesting Party, in writing, which shall then decide whether to be complied with the request despite such circumstances.
2. The Requested Party may ask the Requesting Party that the information or evidence obtained under this Treaty has co nfidencial character, in accordance with the conditions specified. In such a case the requesting Party shall observe such conditions. If you can not accept, it shall notify the Requested Party shall decide on the request for assistance.
3. The Requesting Party shall not use or communicate, except with the consent of the Requested Party, the information or evidence provided by the Requested Party for criminal proceedings other than those stated in the request. However, in cases where the charge is altered, the material provided may be used where possible to provide mutual assistance under this Treaty in relation to the offense charged with.
Article 8. Notification of documents.
1. The Requested Party shall, at the request of the Requesting Party shall notify the documents that are transmitted for this purpose.
2. The Requested Party, having made the notification, the Requesting Party shall issue a certificate of notification shall contain a description of the date, place and manner of notification and must be duly signed or stamped by the authority notified documents. If the notification can not be effected, the Requesting Party shall be notified and informed of the reasons.
ARTICLE 9. INFORMATION AND TESTS.
1. Parties may request information and evidence for the purpose of criminal proceedings.
2. The assistance may be provided under this article it comprises the following, without being limited thereto:
a) Provide information and documents or copies thereof for the purpose of criminal proceedings in the territory of the Requesting Party;
B) The taking of evidence including statements of witnesses or other persons, produce documents, conduct searches, or collect other evidence for transmission to the Requesting Party;
C) Search, seizing and delivering to the Requesting Party temporarily or permanently, as appropriate, any test and provide information that may require the Requesting Party concerning the place of seizure, the circumstances of it and custody back of the seized material before delivery.
3. The Requested Party may postpone the delivery of the good or requested test, if they are required for criminal or civil proceedings in their territory. The Requested Party shall, upon request, certified copies of documents.
4. When required by the Requested Party, the Requesting Party shall return the goods and evidence provided under this Article when no longer needed for the purpose for which they were provided and other documents or objects provided pursuant to this Treaty.
ARTICLE 10. PRACTICE TEST.
1. The Requested Party shall, as soon as possible, through the Central Authorities, all evidence and information obtained to the requesting Party.
2. The Requested Party shall, to the extent that its domestic law permits and at the request of the requesting Party may permit the presence of judicial officials specified in the request for assistance during the practical test.
3. For the purposes of paragraph 2, the Requested Party shall, upon request, promptly inform the requesting Party about the time and place of execution of the application.
ARTICLE 11. SUPPLY OF OFFICIAL DOCUMENTS AND INFORMATION.
At the request of the Requesting Party, the Requested Party:
a) Provide copies of documents, records and official information accessible to the public;
B) May provide copies of documents and information to which the public has no access. If assistance under this subparagraph is denied, the Requested Party shall not be obliged to state the reasons for refusal.
ARTICLE 12. PRESENCE OF OTHER PERSONS TO GIVE EVIDENCE OR ASSIST IN INVESTIGATIONS IN THE REQUESTING PARTY.
1. When the Requesting Party requests the presence of a person in its territory to testify, provide information or expertise, the Requested Party shall invite the person to appear before the competent authority of the requesting Party.
2. The competent authority of the requested Party shall record written consent or refusal of the person whose presence is requested in the Requesting Party and shall immediately inform the Central Authority of the Requesting Party of the response.
3. The Requesting Party shall inform the person on the expenses and allowances and fees for perceived by the Requesting Party.
ARTICLE 13. PRESENCE OF DETAINEES TO GIVE UP EVIDENCE OR ASSIST IN INVESTIGATIONS IN THE REQUESTING PARTY.
1. At the request of the Requesting Party, and when the Requested Party access or accept, you can proceed temporarily transferred to the territory of the Requesting Party in order to give evidence or assist in investigations, detainees in the territory of the Requested Party , provided they express their consent.
2. The Requested Party may refuse transfer when one of the following circumstances are present:
a) the presence of the person in custody is necessary for criminal proceedings in the territory of the Requested Party;
B) The transfer may involve extending the detention of such person;
C) there are circumstances that make it inconvenient to transfer.
3. The Requesting Party shall keep the person transferred custody and delivered to the requested Party within the period fixed by it, or before that, to the extent that they no longer were required his presence.
4. The time when the person was in custody of the Requesting Party shall be computed for purposes of detention or completion of sentence in the Requested Party.
5. When the requested Party informs the requesting Party that the transferred person no longer needs to be detained, will be released by the requesting party and treated as persons referred to in Article 12.
ARTICLE 14. WARRANTY
witnesses and experts.
1. A person present in the Requesting Party pursuant to the provisions of Articles 12 and 13 will not be prosecuted, detained or subjected to any restriction of personal freedom by that Party for acts or omissions which preceded his income, or testimony or assessment provided, nor shall be compelled to render evidence or assist in any criminal proceedings, other than that has to do with the application.
2. The security provided for in paragraph 1o. of this Article shall cease to have effect if the above person has not left the territory of the requesting Party within fifteen (15) days following the official notification that his presence is no longer required, or having left days, return voluntarily . However this time does not include time during which the person can not leave the territory of the Requesting Party for reasons of force majeure.
3. A person who abandons give evidence or assist in the investigation, in accordance with Articles 12 and 13, for this reason not be liable for any penalty or be subjected to coercive measures by the Requesting Party.
Article 15. REFUSAL TO GIVE EVIDENCE OR CONTRIBUTE TESTS REQUIRED IN PART.
1. A person who has been asked to provide testimony or evidence under this Treaty may refuse to grant the declaration or provide proof where the law of the Requested Party permit, or ordering that person not give statements or provide evidence in circumstances Similarly, in judicial proceedings that tuvieren origin in the Requested Party.
2. When a person is asked to provide proof under this Treaty claim that there is a right or obligation to refuse to give evidence under the law of the Requesting Party, the Requested Party shall request the requesting party to provide a certification as the existence of that right or obligation.
3. When the Requested Party receives from certification of the Requesting Party as to the existence of the right or obligation claimed by the person, that certification, in the absence of evidence to the contrary, will provide sufficient proof as to the existence of the right or obligation.
ARTICLE 16. MEASURES ON GOODS PRODUCT OR INSTRUMENT OF CRIME.
1. A Party may request the other:
a) Identification, freezing, seizure or other provisional measure for a possible confiscation of property proceeds or instrumentalities of crime, or
b) Identification and confiscation of property proceeds or instrumentalities of crime.
2. . Without prejudice to the provisions of the 5th article, a request made under this Article shall include:
a) A copy of the decision ordering the measure;
B) If possible, the description of the goods, for which it is intended to adopt the measures, their market value and the relationship of these with a process.
C) The reasons why the Requesting Party believes that the product or instrument of crime in the territory of the requested party and the information you have about your location.
3. To the extent permitted by its domestic law, the requested after compliance with the procedures established in its legislation Party shall take the measure referred to in this article, requested by the requesting party to.
4. The Party under this article has seized the proceeds or instrumentalities of crime, disposed of as provided in its domestic law. To the extent permitted by its own laws, under the terms and conditions agreed in each case, a party may transfer all or part of confiscated property or the proceeds of sale of such goods to the other party.
5. The Requested Party 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 this article.
6. The Requested Party shall promptly inform the outcome of the request for assistance made under this Article.
ARTICLE 17. COMMUNICATION OF THE RESULTS OF CRIMINAL PROCEEDINGS.
By request of one party, the other party, to the extent possible under its domestic law, communicate the results of the criminal proceedings in which assistance was provided.
ARTICLE 18. EXCHANGE OF INFORMATION LAWS AND REGULATIONS.
The Parties, upon request, shall inform each other on the laws and regulations or repealed and enforcement of judicial practices in their respective countries.
ARTICLE 19. SUPPLY OF CRIMINAL.
A Party shall, upon request, shall provide the other Party criminal records that exist against a person who has been tried and convicted in their territory.
ARTICLE 20. LANGUAGE.
Applications and its annexes, submitted pursuant to this Treaty shall be accompanied by a translation into the language of the Requested Party or English language.
certification and authentication.
For the purposes of this Treaty, a request for assistance and supporting documents, as well as documents or other material supplied in response to such a request, not require any certification or authentication.
Article 22. EXPENSES
1. The Requested Party shall provide for the recurrent costs of execution or processing of the application and the extraordinary Requesting Party, among others:
a) Expenses related to the transfer of the persons indicated in paragraph 2 of Article 10, to or from the territory of the Requested Party;
B) any allowance or expenses payable to any person traveling to, from and stay in the Requesting Party under Articles 12 and 13. These will be paid in accordance with the rules and regulations of the Requesting Party, and
c) The expenses and fees of experts.
2. The Requesting Party, if so requested it, will prepay expenses, allowances and fees paid by this.
3. If the process requires execution or any other extraordinary expenses, the parties shall consult to determine the terms and conditions under which the application must run.
ARTICLE 23. COMPATIBILITY WITH OTHER treaties or agreements.
This Treaty shall not affect existing obligations between the Parties under other treaties or agreements, or prevent the parties provide or continue being supplied assistance to each other pursuant to other treaties or agreements.
ARTICLE 24. SETTLEMENT OF DISPUTES.
Any dispute between the Parties relating to the interpretation or application of this Treaty shall be resolved by consultation between them through diplomatic channels.
ARTICLE 25. ENTRY INTO FORCE AND TERMINATION.
1. This treaty is subject to ratification. The instruments of ratification shall be exchanged in Bogota. This Treaty shall enter into force on the thirtieth day after the date of exchange of instruments of ratification.
2. This Treaty shall apply to any request presented after its entry into force even if the relevant acts or omissions occurred before the Treaty entered into force.
3. Either Party may terminate this Agreement at any time by written notification through diplomatic channels. The termination shall take effect six months after the day on which the notice whatever delivered.
IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed this Treaty in Beijing fourteenth day of May in 1999 (1999) in two copies in the Spanish language and Chinese both texts being equally authentic.
For the Republic of Colombia, Guillermo Fernandez de Soto
For the PRC,
Illegible signature. " RAMA
PUBLIC POWER EXECUTIVE PRESIDENCY OF THE REPUBLIC
Bogota, DC, October 17, 2000
, submit for consideration by the National Congress for constitutional purposes.
Andres Pastrana Minister of Foreign Affairs,
(Sgd.) Guillermo Fernandez de Soto. DECREES
ARTICLE 1o. Approval of the "Treaty between the Republic of Colombia and the People's Republic of China on Judicial Assistance in Criminal Matters", signed in Beijing, the fourteen (14) May in 1999 (1999).
. In accordance with the provisions of article 1. 7a Act. 1944, the "Treaty between the Republic of Colombia and the People's Republic of China on Judicial Assistance in Criminal Matters", signed in Beijing, the fourteen (14) May in 1999 (1999), which for the first article this law passed, it will force the country from the date the international link is perfect therefrom.
ARTICLE 3. This law applies from the date of publication.
The President of the honorable Senate of the Republic, Carlos Garcia Orjuela
The Secretary General (E.) the honorable Senate of the Republic, Luis Francisco Boada
The President of the honorable Chamber of Representatives,
Guillermo Gaviria Zapata.
The Secretary General of the honorable House of Representatives, Angelino Lizcano Rivera
REPUBLIC OF COLOMBIA - NATIONAL GOVERNMENT
transmittal and enforcement.
Run, after review by the Constitutional Court, pursuant to Article 241-10 of the Constitution.
Given in Bogotá, DC, on July 31, 2002.
Andres Pastrana Minister of Foreign Affairs, Guillermo Fernandez de Soto
The Minister of Justice and Law,
Romulo Gonzalez Trujillo.