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1179 OF 2007
(December 31)
Official Journal No. 46,858 of 31 December 2007
CONGRESS OF THE REPUBLIC
By means of which the "Additional Protocol to the Convention of Judicial Cooperation in Criminal Matters between the Republic of Colombia and the Kingdom of Spain of 29 May 1997", signed in Madrid, is hereby approved, to twelve (12) July of two mil five (2005).
The Congress of Colombia
Having regard to the text of the "Additional Protocol to the Convention on the Judicial Cooperation in Criminal Matters between the Republic of Colombia and the Kingdom of Spain of 29 May 1997", signed in Madrid, to twelve (12) of July, two thousand five (2005), letter says:
(To be transferred: photocopy of the full text of the International Instrument mentioned).
ADDITIONAL PROTOCOL TO THE CONVENTION ON JUDICIAL COOPERATION IN CRIMINAL MATTERS BETWEEN THE REPUBLIC OF COLOMBIA AND THE KINGDOM OF SPAIN, OF 29 MAY 1997.
The Republic of Colombia and the Kingdom of Spain, hereinafter the Parties,
Highlighting the importance of updating the Convention on Judicial Cooperation in Criminal Matters concluded between the Kingdom of Spain and the Republic of Colombia, 1997, which is aimed at the development of new forms of cooperation judicial.
Reselling the memorandum of understanding signed in Cartagena de Indias on October 29, 2004 by the Minister of Justice of Spain and the Prosecutor General of the Nation of the Republic of Colombia, as well as the constitution, on the same date, of the Ibero-American Network of Judicial Cooperation (IberRed).
Expressing their confidence in the structure and functioning of their respective legal systems and the ability to ensure a fair trial
Noting the common interest to ensure that judicial assistance between the Parties is carried out in a timely manner and in a manner compatible with the fundamental principles of its internal legal systems and respecting the rights recognised for all persons.
Aware of the need to improve and improve the traditional mechanisms of international judicial assistance to effectively address organized crime, especially terrorism and trafficking illegal drugs and chemical inputs for the production of substances that produce dependency.
Considering that international cooperation is an effective tool for dealing with crime in any of its manifestations.
In compliance with the constitutional, legal and administrative rules of the Parties, as well as respect for the principles of international law, sovereignty and territorial integrity,
Agreed:
GENERAL PROVISIONS.
ARTICLE 1o. RELATIONSHIP WITH OTHER JUDICIAL ASSISTANCE CONVENTIONS. This Protocol is intended to supplement the provisions and facilitate the application between the Kingdom of Spain and the Republic of Colombia, of the Convention on Judicial Cooperation in Matters Criminal proceedings of 29 May 1997, without prejudice to multilateral agreements on such matters which have been ratified by the Parties.
1. This Protocol shall apply exclusively to requests for judicial assistance to be addressed between the Parties, the purpose of which is the criminal investigation and repression of terrorism, the trafficking of narcotic substances, chemical inputs, money laundering and money laundering, crimes committed by a criminal organisation and related offences.
2. For the purposes of this Protocol, terrorism shall be understood as such acts as such in the internal legal systems of each Party, as well as conduct referred to as terrorist acts, in instruments International agreements in force for both Parties.
3. For the purposes of this Protocol, 'criminal organisation' means a structured association of more than two persons, established over a certain period of time, and acting in a concerted manner for the purpose of committing offences, with independence from such offences as constituting an end in themselves or a means of obtaining property benefits and, where appropriate, of undue influence on the functioning of the public authority.
4. For the purposes of this Protocol, offences relating to the trafficking of narcotic substances and inputs for their preparation shall be understood as such offences as such in the internal legal systems of each Party, as well as conduct typified as such in international instruments in force for both Parties.
ARTICLE 3o. PROCEDURES AND PROCEDURES FOR THE ENFORCEMENT OF REQUESTS FOR LEGAL ASSISTANCE.
1. In cases where judicial assistance is granted, the requested Party shall comply with the special forms and requirements indicated in the application, unless it is incompatible with this Protocol or with its fundamental legal order.
2. The requested Party shall implement the request for assistance as soon as possible taking into account the procedural time limits indicated by the requesting Party.
3. If the request cannot be executed in whole or in part, the requested Party shall inform the requesting Party thereof, further indicating the terms on which the assistance may be completed.
ARTICLE 4. SPONTANEOUS EXCHANGE OF INFORMATION.
1. Subject to the limitations imposed by national law, the competent authorities of both Parties may provide information, without any request for such information, concerning criminal offences and infringements of legal provisions, which reasonably be understood to be pursued by the receiving Party.
2. The authority providing the information may impose conditions on the use of the information by the receiving authority in accordance with its internal law.
SPECIFIC FORMS OF JUDICIAL ASSISTANCE.
ARTICLE 5o. PROTECTION OF WITNESSES AND EXPERTS IN CRIMINAL INVESTIGATIONS AND CAUSES.
1. With the limitations imposed by national law and where there is an agreement between the competent authorities of both Parties, a person who has been incorporated by the competent national authority as a witness or a protected expert in an investigation or a criminal case may be admitted to the witness and expert protection programmes of the other Party.
2. The transfer and support of the protégé shall be agreed between the competent authorities through the central authorities.
ARTICLE 6o. USING TECHNICAL MEANS.
1. Where a person staying in the territory of one of the two Parties is to be heard as a witness or expert by the judicial authorities of the other Party, the latter shall, in the event that the person to whom the hearing is to be heard is not appropriate or possible. be personally involved in your territory, may use the means offered by the technology and with which each Party counts, in order to achieve the purpose proposed by the judicial assistance.
2. If the requested Party does not have the necessary technical means for a video conference, the requesting Party may make them available to it after agreement.
3. The hearing by videoconference shall be governed by the following provisions:
(a) During the hearing a judicial authority of the requested Party shall be present, responsible for identifying the person to be heard and for ensuring respect for the fundamental principles of the Party's internal law. If necessary, you will be assisted by an interpreter.
When the requested Party's judicial authority considers that during the hearing the fundamental principles of its internal order are being infringed, it shall immediately take the necessary measures to ensure the continuation of the hearing in accordance with the above principles;
(b) The competent authorities of the Parties shall agree, where necessary, on the adoption of measures for the protection of the person to be heard;
(c) The hearing shall be conducted directly by or under the direction of the judicial authority of the requesting Party, in accordance with its internal order.
4. Without prejudice to the measures agreed upon for the protection of persons, the hearing shall be completed, the judicial authority of the requested Party shall draw up the minutes of the declaration, indicating the date and place of the hearing, the identity of the person heard, the identity and quality of any other persons of the requested Party who have participated in the hearing, the performance of the oath, where appropriate, and the technical conditions under which the declaration has been made. The competent authority of the requested Party shall transmit that document to the competent authority of the requesting Party.
5. The central authorities will previously agree on the conditions under which the costs of videoconferencing will be assumed.
6. The Parties may, if they consider it appropriate, also apply the provisions of this Article, where appropriate and with the agreement of their competent authorities, to the hearing by videoconference of a defendant. In this case, the decision to hold the video conference and the manner in which it is carried out shall be subject to the agreement of the Parties in accordance with their domestic law and with the relevant international instruments.
ARTICLE 7o. MONITORED DELIVERIES.
1. The Parties shall undertake to permit, in their territories, to the extent permitted by their fundamental legal order, and at the request of the other Party, to be monitored in the framework of criminal investigations.
2. The decision concerning the conduct of supervised deliveries shall be taken in each case by the competent authority of the requested Party, by virtue of its internal order.
3. The supervised deliveries shall be carried out in accordance with the procedures in force in the requested Party. The competence for action, as well as the management and control of operations, shall be the responsibility of the competent authorities of that Party.
ARTICLE 8o. JOINT INVESTIGATION TEAMS.
1. The competent authorities of both Parties may, in accordance with their fundamental legal order, integrate research commissions for a specified purpose and for an established period, which may be extended with the consent of both Parties. carry out criminal investigations in the territory of one of them. The composition of the equipment shall be determined in the agreement of its constitution. Joint investigation teams may be set up in the following cases:
(a) When the investigation of criminal offences that a Party forwards, magazine complexity and also affects the other;
(b) Where investigations are carried out on criminal offences which, due to the circumstances of the case, require coordinated and concerted action. Either Party may make an application for the establishment of a joint investigation team. The equipment shall be established in the territory of one of the Parties where the investigation is planned.
2. The joint investigation team shall act on the territory of both Parties, in accordance with the following general conditions:
(a) It shall be directed by a representative of the competent authority involved in the criminal investigation of the Party in which the team acts. The head of the team shall act within the limits of the powers conferred on him in accordance with the internal legal order;
(b) The team shall act in accordance with the internal legal order of the Party in which the investigation is taking place. Its members shall carry out the work under the direction of the designated head, taking into account the conditions established by their own authorities in the arrangement of the establishment of the team.
3. The members of the joint investigation team will have the right to be present when investigation measures are taken in the territory where the team is acting. However, for specific reasons and in accordance with the internal legal order of the Party in which the team acts, the head of the team may decide otherwise.
4. In accordance with the national law of the Party in which the joint investigation team is acting, the head of the joint investigation team may entrust the persons to whom the joint investigation team is responsible for the execution of certain investigative measures, where approve the competent authorities of both Parties.
5. Where the joint investigation team requires that investigative measures be taken in the territory of the Party where it is not acting, its members may request their own competent authorities to take such measures. These measures will be examined under the same conditions as they would be requested in a national investigation.
6. Where the joint investigation team needs assistance from a third State, which has not participated in the establishment of the team, the competent authorities of the Party where the team is acting may make the request for assistance to the authorities. the competent authority of the third State concerned, in accordance with the applicable instruments or provisions, reporting on this situation to the other Party.
7. Information that is legally obtained by a member of a joint investigation team and to which the competent authorities of the other Party do not otherwise have access may be used for the following purposes:
a) For the purposes for which the team was created;
b) For use, subject to prior authorization by the Party in which the information was obtained, to discover, investigate and prosecute other criminal offences. Such authorisation may be refused only in cases where such use jeopardises criminal investigations of the other Party;
(c) To avoid an immediate and serious threat to public security, and without prejudice to point (b), if a criminal investigation is subsequently initiated;
(d) The competent authorities of both Parties shall have immediate access to the information obtained by the joint teams, which shall be treated in a reserved manner. The head of the team shall ensure compliance with this obligation.
8. The Parties shall ensure the safety and integrity of the members of the joint investigation teams which are established in accordance with this Article.
ARTICLE 9o. COVERT OPERATIONS.
1. The Parties may, to the extent permitted by their fundamental legal order, agree to cooperate in the conduct of investigations of criminal activities by agents acting as infiltrators or with a false identity.
2. The decision on the application, the duration of the covert investigation, the specific conditions and the legal status of the agents, shall be taken in each case by the competent authorities of the requested Party in accordance with the provisions of its national law. fundamental legal.
3. Covert investigations shall be conducted in accordance with the law and procedures of the Party on whose territory they are held.
4. The Parties shall cooperate to ensure the preparation and monitoring of covert investigation and the adoption of security measures for agents acting in a covert or false identity.
ARTICLE 10. CRIMINAL LIABILITY IN RELATION TO OFFICIALS. During the operations referred to in Articles 7, 8 and 9 of this Protocol, officials from the authorities of the Party other than that in which the operation, the officials of the latter shall be treated in the same way as for the offences in which they may incur.
ARTICLE 11. CIVIL LIABILITY IN RELATION TO OFFICIALS.
1. The Party in whose territory damages are caused by the members of a joint team in the development of its tasks shall assume the repair thereof.
2. The Party whose officials have caused damages in the territory of the other party shall fully refund the amounts it has paid.
ARTICLE 12. PERSONAL DATA PROTECTION.
1. Personal data communicated in accordance with this Protocol may be used by the Party to which it has been transmitted:
a) For the procedures to which this Protocol applies;
(b) For other judicial and administrative proceedings directly related to the procedures referred to in point (a)
c) To prevent an immediate and severe threat to public safety;
d) For any other purpose, only prior to the authorization of the transmitting Party, unless the other party has obtained the consent of the person concerned.
2. This Article shall also apply to personal data which have not been communicated but which have been otherwise obtained in accordance with this Protocol.
3. Depending on the circumstances of each particular case, the transmitting Party may require the other Party to which it has transmitted the personal data to provide information on the use made of it.
4. In cases where conditions have been imposed on the use of personal data, these conditions shall prevail.
5. This Article shall not apply to personal data obtained by a Party under this Convention and which has its origin in that Party.
ARTICLE 13. MECHANISMS FOR FACILITATING JUDICIAL COOPERATION IN CRIMINAL MATTERS. The Parties shall further cooperate through the following modalities:
1. Exchange of scientific and scientific experience in the field of criminal investigation, terrorism, drug trafficking, trafficking in chemical inputs, money laundering, money laundering, organized crime, and related crimes.
2. Exchange of publications related to changes to their judicial systems and new jurisprudential criteria in the areas covered by this instrument.
3. Organisation of academic days with the participation of prosecutors, judges, magistrates and other servants of the entities responsible for the investigation and prosecution of punishable conduct.
4. Cooperation programmes for assistance to victims.
For the performance of the activities and meetings provided for in this Protocol, the central authorities shall agree on the methodology to be used for each of them, as well as the duration of the activities and the number of participants.
ARTICLE 14. ENTRY INTO FORCE AND DURATION.
1. This Protocol shall enter into force on the first day of the second month following the exchange of the instruments of ratification.
2. This Protocol shall remain in force as long as the Convention on the Judicial Cooperation in Criminal Matters between the Republic of Colombia and the Kingdom of Spain of 29 May 1997.
3. This Protocol may be denounced by either Party at any time, independently of the Convention on Judicial Cooperation in Criminal Matters between the Republic of Colombia and the Kingdom of Spain of 29 May 1997, by a Diplomatic Note, which shall take effect six months after the date of receipt by the other Party. The complaint will not affect any requests for assistance in progress.
Subscribed in Madrid, to July 12, two thousand five in two copies in Spanish, both texts being equally valid and authentic.
By the Republic of Colombia,
Luis Camilo Osorio,
Attorney General.
By the Kingdom of Spain,
Juan Fernando Lopez Aguilar,
Minister of Justice.
Executive Branch of Public Power
Presidency of the Republic
Bogotá, D. C., November 18, 2005.
Approved. Submit to the consideration of the honorable National Congress for the constitutional effects.
(Fdo.) ALVARO URIBE VELEZ
The Foreign Minister,
(Fdo.) Carolina Barco Isakson.
DECRETA:
ARTICLE 1o. Approve the "Additional Protocol to the Convention of Judicial Cooperation in Criminal Matters between the Republic of Colombia and the Kingdom of Spain, of 29 May 1997", signed in Madrid, to twelve (12) of July of two thousand five (2005).
ARTICLE 2o. In accordance with the provisions of Article 1 of Law 7ª of 1944, the " Additional Protocol to the Convention of Judicial Cooperation in Criminal Matters between the Republic of Colombia and the Kingdom of Spain, of 29 May 1997 ", signed in Madrid, to twelve (12) of July 1997, two thousand five (2005), which is approved by Article 1 of this law, will force 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.
Dada en Bogotá, D. C., a los ...
Presented to the honorable Congress of the Republic by the Minister of Foreign Affairs and the Minister of the Interior and Justice.
The Foreign Minister,
Carolina Barco Isakson.
The Minister of the Interior and Justice,
Sabas Pretelt de la Vega.
EXECUTIVE BRANCH OF PUBLIC POWER
PRESIDENCY OF THE REPUBLIC
Bogotá, D. C., November 18, 2005.
Approved. Submit to the consideration of the honorable National Congress for the constitutional effects.
(Fdo.) ALVARO URIBE VELEZ
The Foreign Minister,
(Fdo.) Carolina Barco Isakson.
ARTICLE 1o. Approve the "Additional Protocol to the Convention of Judicial Cooperation in Criminal Matters between the Republic of Colombia and the Kingdom of Spain of 29 May 1997", signed in Madrid, 12 (12) July two thousand five (2005).
ARTICLE 2o. In accordance with the provisions of Article 1 of Law 7ª of 1944, the " Additional Protocol to the Convention of Judicial Cooperation in Criminal Matters between the Republic of Colombia and the Kingdom of Spain, of 29 May 1997 ", signed in Madrid, to twelve (12) of July 1997, two thousand five (2005), which is approved by Article 1 of this law, will force 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.
The President of the honorable Senate of the Republic,
Nancy Patricia Gutierrez Castaneda.
The Secretary General of the Senate of the Republic,
Emilio Ramon Otero Dajud.
The President of the honorable House of Representatives,
Oscar Arboleda Palacio.
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 December 2007.
ALVARO URIBE VELEZ
The Minister of the Interior and Justice,
Carlos Holguin Sardi.
The Foreign Minister,
Fernando Araujo Perdomo.
