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By Which Approves 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)

Original Language Title: Por medio de la cual se aprueba el "Tratado entre la República de Colombia y la República Popular China sobre Asistencia Judicial en Materia Penal", firmado en Beijing, el catorce (14) de mayo de mil novecientos noventa y nueve (1999)

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LAW 761 OF 2002

(July 31)

Official Journal No. 44.889 of 5 August 2002

PUBLIC POWER-LEGISLATIVE BRANCH

By means of which the "Treaty between the Republic of Colombia and the People's Republic of China on Judicial Assistance in Criminal Matters" is approved, signed in Beijing, the fourteen (14) of May of a thousand nine hundred and ninety-nine (1999).

Vigency Notes Summary

The Congress of the Republic

Having regard to the text of the "Treaty between the Republic of Colombia and the People's Republic of China on Judicial Assistance in Criminal Matters", signed in Beijing on 14 May, 14 (14), nine hundred and ninety-nine (1999), which reads:

(To be transcribed: photocopy of the full text of the international instrument mentioned).

" TREATY BETWEEN THE REPUBLIC OF COLOMBIA AND THE PEOPLE ' S REPUBLIC OF CHINA ON JUDICIAL ASSISTANCE IN CRIMINAL MATTERS

The Republic of Colombia and the People's Republic of China, hereinafter "the Parties".

Acknowledging that the fight against crime requires the joint action of the States;

Considering the bonds of friendship and cooperation between the two countries;

In observance of the constitutional, legal and regulatory norms of their States, as well as respect for the principles of International Law;

reaffirming the basic principle of mutual respect for national sovereignty, equality and mutual benefit;

For the purpose of promoting and intensifying cooperation between the two States in respect of judicial assistance in criminal matters,

AGREE

ARTICLE 1. APPLICATION BOTH.

1. The Parties undertake to provide the widest mutual judicial 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:

a) Extradition;

(b) The execution of criminal sentences including the transfer of convicted persons to the object of their criminal sentence.

3. This Treaty shall be deemed to be concluded exclusively for the purpose of mutual legal assistance between the Contracting Parties. The provisions of this Treaty do not give rise to any right in favour of individuals in obtaining or excluding evidence or hindering the enforcement of an application.

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ARTICLE 2. CONTENT OF THE ASSISTANCE.

1. Assistance shall include:

a) Document delivery and notification;

b) Making statements to people;

c) The provision of information, documents, files, and test objects;

d) obtaining and providing expert assessments;

e) Localization and identification of people;

f) Examining objects and places;

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 persons, including detainees, to testify or assist in the investigation;

j) Notification of the results of the proceedings in criminal matters, exchange of information on laws and regulations, and provision of criminal records;

k) Any other form of assistance in accordance with the purposes of this Treaty as long as it is not incompatible with the laws of the Required Party.

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ARTICLE 3. CENTRAL AUTHORITIES.

1. Requests for assistance under this Treaty, as well as their replies, shall be sent and received through the Central Authorities; those requests shall be communicated directly to each other.

2. The Central Authorities referred to in paragraph 1 are:

(a) In relation to requests for assistance received by the Republic of Colombia, the Central Authority shall be the Office of the Prosecutor General of the Nation. In relation to requests for judicial assistance submitted by the Republic of Colombia, the Central Authority shall be the Office of the Prosecutor General of the Nation or the Ministry of Justice and Law;

b) By the People's Republic of China, the Supreme People's Procuratorate and the Ministry of Justice.

3. The Parties shall communicate by diplomatic means any modification in relation to the designation of the Central Authorities.

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ARTICLE 4. DENIAL OR DEFERRAL OF ASSISTANCE.

1. The Required Party will be able to deny assistance when in their judgment:

a) The application relates to a political or strictly military offence;

b) The execution of the application impairs the sovereignty, security, public order, or other essential interests of the Required Party;

(c) Exist sufficient grounds to believe that the request for assistance has been made for the purpose of investigating, accusing, punishing, initiating another process or discriminating in any form to a person for their race, sex, religion, nationality, political opinion or social status;

d) The defendant or related suspect in the application is being criminally prosecuted or has been given definitive judgment for the same facts on the territory of the required party;

e) The requirement refers to conduct that could not constitute a crime under the laws in the territory of the Replaced Party, noting that the Parties may agree to provide assistance for a particular crime or category of crimes, regardless of whether the conduct may constitute a crime under the laws of the territory of both Parties.

2. The assistance may be deferred by the Required Party if the execution of the application interferes with an investigation, prosecution or ongoing process in the Required Party.

3. Before refusing a request or postponing its execution, the Redeemed Party will consider whether the assistance can be granted subject to such conditions as it deems appropriate. If the Requesting Party accepts the 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.

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ARTICLE 5. CONTENT OF THE REQUESTS.

1. A request for assistance must contain:

a) The name of the competent authority that made the request;

b) The purpose of the request and a description of the assistance that it intends to;

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 the application is required to be fulfilled.

2. Requests for assistance to the extent necessary or possible must also include:

a) Information about the identity and location of the person from whom some test is requested;

b) Information about the identity and location of the person to be notified and the person's relationship to the criminal proceedings;

(c) Description of the place to be inspected and of the goods requested to be investigated, immobilised, sequestered or otherwise taken on a provisional basis;

d) Description of any special procedures or requirements that you want to follow when you run the request;

e) Information regarding assignments, expenses and fees to which the person is entitled to appear in the Requesting Party;

f) The need for confidentiality and the reasons for it, and

g) Any other information that is necessary for the proper execution of the request.

3. If the Required Party considers that the content of the request is not sufficient to enable it to address the issue, it may request additional information.

4. The request for assistance shall be made in writing and shall be duly signed or sealed by the requesting authority. In circumstances of urgency, it may be anticipated by telex, facsimile, or other equivalent means, and must be confirmed by original document signed or sealed by the Requesting Party, as soon as possible.

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ARTICLE 6. EXECUTION OF REQUESTS.

1. The competent authorities of the Require Party shall execute the request for assistance in accordance with their legal order.

2. The request for assistance may be executed by the Requested Party in the form requested by the Requesting Party, provided it is not contrary to its internal legal order.

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 request was not possible. compliance.

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ARTICLE 7. CONFIDENTIALITY AND LIMITATIONS IN THE USE OF INFORMATION.

1. The requested party shall keep the request for legal assistance and its annexes, as well as the fact that assistance was provided, under reserve. Where the application cannot be complied with, the Party shall inform the requesting Party, in writing, of the fact that it will be responsible for deciding whether to comply with the request, in order to comply with the principle of confidentiality. application despite such circumstances.

2. The Requested Party may ask the Requesting Party to provide the information or evidence obtained under this Treaty to be of a non-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 assistance.

3. The Requesting Party shall not use or communicate, unless the consent of the Required Party, the information or the evidence provided by the Required Party for criminal proceedings other than those indicated in the application. However, in cases where the charge is modified, the material provided may be used where it is possible to provide mutual assistance under this Treaty in relation to the offence being charged.

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ARTICLE 8. DOCUMENT NOTIFICATION.

1. The Required Party, at the request of the Requesting Party, shall notify the documents transmitted to it for this purpose.

2. The Requested Party shall, after having made the notification, issue to the Requesting Party a certificate of notification containing the description of the date, place and manner of notification and shall be duly signed or sealed by the Party. authority that notified the documents. If the notification cannot be made, the Requesting Party shall be informed and informed of the reasons.

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ARTICLE 9. INFORMATION AND TESTS.

1. The Parties may request information and evidence for the purposes of criminal proceedings.

2. The assistance which may be provided under this Article shall include the following aspects, without limitation:

a) Provide information and documents or copies thereof for the purposes of criminal proceedings in the territory of the Requesting Party;

b) Practice testing including witness statements or other persons, produce documents, record, or collect other evidence for transmission to the Requesting Party;

c) Seek, seize and deliver to the Requesting Party on a temporary or permanent basis, as the case may be, any evidence and provide information that the Requesting Party may require regarding the place of seizure, the circumstances of the seizure and the subsequent custody of the seized material prior to delivery.

3. The requested party may postpone the delivery of the requested good or test, if these are required for a criminal or civil process in its territory. The Required Party shall provide certified copies of documents to the requested party.

4. When required by the Required Party, the Requesting Party shall return the goods and means of proof provided under this Article when it no longer needs them for the purpose for which they were provided and the other documents or objects provided in compliance with this Treaty.

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ARTICLE 10. TEST PRACTICE.

1. The Required Party shall, as soon as possible, transmit through the Central Authorities all evidence and information obtained from the Requesting Party.

2. The Required Party, to the extent that its domestic law permits and at the request of the requesting Party, may permit the presence of the judicial officers indicated in the request for assistance, during the practice of the test.

3. For the purposes of paragraph 2, the Requested Party shall, upon request, inform the Requesting Party in due time about the time and place of execution of the request.

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ARTICLE 11. PROVISION OF OFFICIAL DOCUMENTS AND INFORMATION.

At the Request of the Requesting Party, the Required Party:

a) Provide copies of documents, records and official information accessible to the public;

b) You may provide copies of documents and information to which the public does not have access. If the assistance provided for in this literal is denied, the Required Party shall not be required to express the grounds for refusal.

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ARTICLE 12. PRESENCE OF OTHER PERSONS TO TESTIFY OR ASSIST IN INVESTIGATIONS IN THE REQUESTING PARTY.

1. Where the Requesting Party requests the presence of a person on its territory to testify, provide information or expertise, the Requested Party shall invite that person to appear before the competent authority of the Requesting Party.

2. The competent authority of the requested party shall record in writing the consent or rejection of the person whose presence is requested in the Requesting Party and shall immediately inform the Central Authority of the Requesting Party on the response.

3. The Requesting Party shall inform that person about the costs, allowances and fees to be charged by the Requesting Party.

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ARTICLE 13. PRESENCE OF DETAINED PERSONS TO TESTIFY OR ASSIST IN INVESTIGATIONS IN THE REQUESTING PARTY.

1. At the request of the Requesting Party, and when the Requested Party agrees or agrees, it may be temporarily transferred to the territory of the Requesting Party, in order to provide testimony or assistance in investigations, to persons held in the territory of the Redeemed Party, provided that they express their consent.

2. The Required Party may refuse the shipment when one of the following circumstances arises:

(a) The presence of the detained person is necessary for criminal proceedings in the territory of the Redeemed Party;

b) The transfer may involve the prolongation of the detention of that person;

c) Exist circumstances that make the move inconvenient.

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 the person is in the custody of the Requesting Party shall be computed for the purposes of detention or execution of penalty on the Required Party.

5. Where the Requested Party communicates to the Requesting Party that the person transferred no longer needs to be detained, it shall be released by the Requesting Party and treated as the persons referred to in Article 12.

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ARTICLE 14. GUARANTEE TO WITNESSES AND EXPERTS.

1. A person who is present in the Requesting Party as provided for in Articles 12 and 13 shall not be prosecuted, detained or subjected to any restriction of personal liberty by that Party, for acts or omissions preceding his or her entry, or the testimony or assessment provided, nor shall it be required to render evidence or to collaborate in any criminal proceedings, other than the one related to the application.

2. The security provided for in paragraph 1. of this Article shall cease in its effects if the above mentioned person has not left the territory of the Requesting Party within fifteen (15) days following the official notification that its presence is no longer required, or that having come out, go back voluntarily. However this time period does not include the time during which the person cannot leave the territory of the Requesting Party for reasons of force majeure or fortuitous case.

3. A person who desists to render or collaborate in the investigation, in accordance with Articles 12 and 13, for this reason shall not be liable for any penalty or be subjected to coercive measures by the Requesting Party.

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ARTICLE 15. REFUSAL TO GIVE STATEMENT OR PROVIDE EVIDENCE ON THE REQUIRED PARTY.

1. A person who has been asked to provide a declaration or proof under this Treaty may refuse to grant the declaration or to deliver the evidence when the legislation of the Replaced Party so permits, or orders that person not to surrender. statement or provide evidence in similar circumstances, in legal proceedings which have originated in the Redear Party.

2. Where a person who is requested to provide proof under this Treaty claims that there is a right or obligation to refuse to provide evidence under the legislation of the Requesting Party, the Requested Party shall request the Requesting Party to provide you with a certification as to the existence of that right or obligation.

3. Where the Requested Party receives certification from the Requesting Party as to the existence of the right or obligation claimed by the person, that certification, in the absence of proof against it, shall provide sufficient proof in the existence of the right or obligation.

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ARTICLE 16. MEASURES ON GOODS OR INSTRUMENTALITY OF THE OFFENCE.

1. One Party may apply to the other Party:

(a) The identification, detention, seizure, seizure or other provisional measure for any confiscation of goods or proceeds of crime, or

(b) The identification and confiscation of goods or proceeds of crime.

2. Without prejudice to the provisions of Article 5, a requirement under this Article shall include:

a) A copy of the decision in which the measure is ordered;

(b) If possible, the description of the goods, in respect of which the measures are intended to be taken, their commercial value and their relationship to a process.

c) The reasons why the Requesting Party believes that the product or instrument of the crime is in the territory of the required party and the information it possesses on its location.

3. To the extent permitted by its domestic law, the Party Redear, after complying with the forms laid down in its legislation, shall adopt the measure referred to in this Article, requested by the requesting party.

4. The Party which has seized the product or instrument of the crime under this Article shall have them in the form provided for in its internal legal order. To the extent permitted by its own laws, under the agreed terms and conditions for each case, a party may transfer all or part of the seized goods or proceeds from the sale of such goods to the other party.

5. The Required Party shall, in accordance with its law, resolve any request concerning the protection of third-party rights in good faith on the goods that are subject to the measures provided for in this Article.

6. The Requested Party shall promptly report on the outcome of the request for assistance under this Article.

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ARTICLE 17. COMMUNICATION OF THE RESULTS OF CRIMINAL PROCEEDINGS.

At the request of one party, the other party, to the extent permitted by its domestic law, will communicate on the results of the criminal proceedings in which assistance was provided.

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ARTICLE 18. INFORMATION EXCHANGE ON LAWS AND REGULATIONS.

The Parties shall, upon request, inform each other of the laws and regulations in force or repealed and the enforcement of judicial practices in their respective countries.

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ARTICLE 19. PROVISION OF CRIMINAL RECORDS.

A Party shall, upon request, provide the other Party with a criminal record that exists against a person who has been prosecuted and convicted on its territory.

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ARTICLE 20. LANGUAGE.

The applications and their annexes, submitted in accordance with this Treaty, shall be accompanied by a translation into the language of the Required Party or in English.

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ARTICLE 21. CERTIFICATION AND AUTHENTICATION.

For the purposes of this Treaty, an application for assistance and its supporting documents, as well as documents or other material provided in response to such request, shall not require any certification or authentication.

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ARTICLE 22. EXPENSES.

1. The Required Party shall be responsible for the ordinary costs of execution or processing of the request and the Requesting Party for the extraordinary, among others:

(a) The expenses related to the transfer of the persons referred to in paragraph 2 of Article 10, to or from the territory of the Required Party;

(b) Any allocation or expense payable to any person travelling to, from and remaining in the Requested Party in accordance with Articles 12 and 13. These shall 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 requested, will pay in advance the expenses, allowances and fees assumed by it.

3. If execution or processing requires any other extraordinary expense, the parties will consult to define the terms and conditions under which the request should be executed.

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ARTICLE 23. COMPATIBILITY WITH OTHER TREATIES OR AGREEMENTS.

This Treaty will not affect existing obligations between the Parties under other treaties or agreements, nor will it prevent the parties from supplying or continuing to provide assistance to each other in accordance with other treaties or agreements.

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ARTICLE 24. DISPUTE RESOLUTION.

Any dispute arising between the Parties relating to the interpretation or application of this Treaty shall be resolved by consultations between them, through diplomatic channels.

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ARTICLE 25. ENTRY INTO FORCE AND TERMINATION.

1. This Treaty is subject to ratification. The instruments of ratification will be exchanged in Bogota. This Treaty shall enter into force on the thirtieth day after the date of the exchange of instruments of ratification.

2. This treaty shall apply to any application submitted after its entry into force even if the relevant facts or omissions occurred before the Treaty entered into force.

3. Any Party may terminate this Treaty at any time by means of a written notification by diplomatic means. The termination shall take effect six months after the day on which the notification is delivered.

In faith of which, the undersigned, duly authorized to do so by their respective governments, have signed this Treaty in Beijing 14 days of the month of May of a thousand nine hundred and ninety-nine (1999) in two copies in Spanish languages and Chinese being both texts equally authentic.

By the Republic of Colombia,

Guillermo Fernandez de Soto.

By the People's Republic of China,

Unreadable Signature ".

EXECUTIVE BRANCH OF PUBLIC POWER

PRESIDENCY OF THE REPUBLIC

Bogotá, D. C., October 17, 2000

Approved, subject to the consideration of the honorable National Congress for constitutional effects.

(Fdo.) ANDRES PASTRANA ARANGO

The Foreign Minister,

(Fdo.) Guillermo Fernandez de Soto.

DECRETA:

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ARTICLE 1o. Approve 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) of May of the thousand nine hundred and ninety-nine nine (1999).

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ARTICLE 2o. In accordance with the provisions of Article 1o. of Law 7a. In 1944, the "Treaty between the Republic of Colombia and the People's Republic of China on Judicial Assistance in Criminal Matters", signed in Beijing, on the fourteen (14) of May of one thousand nine hundred and ninety-nine (1999), which is the first article of this law is approved, shall be binding on the country from the date on which the international link with respect to it is perfected.

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ARTICLE 3o. This law governs from date d and its publication.

The President of the honorable Senate of the Republic,

Carlos Garcia Orjuela.

The Secretary General (E.) of the honorable Senate of the Republic,

Luis Francisco Boada Gomez.

The President of the honorable House of Representatives,

Guillermo Gaviria Zapata.

The Secretary General of the honorable House of Representatives,

Angelino Lizcano Rivera.

COLOMBIA-NATIONAL GOVERNMENT

Communicate and comply.

Execute, upon revision of the Constitutional Court, in accordance with article 241-10 of the Political Constitution.

Dada en Bogotá, D. C., at 31 July 2002.

ANDRES PASTRANA ARANGO

The Foreign Minister,

Guillermo Fernandez de Soto.

The Minister of Justice and Law,

Romulo Gonzalez Trujillo.

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