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ACT 1333 2009
Official Gazette No. 47417 of July 21, 2009
CONGRESS OF THE REPUBLIC Whereby the environmental sanctioning procedure is established and other provisions. Summary
THE CONGRESS OF THE REPUBLIC DECREES:
TITLE I. GENERAL PROVISIONS.
ARTICLE 1o. OWNERSHIP OF ENVIRONMENTAL STANDARDS sanctioning authority. The state is the owner of the sanctioning authority in environmental matters and exercised without prejudice to the legal powers of other authorities through the Ministry of Environment, Housing and Territorial Development, the Regional Autonomous Corporations, the Sustainable Development, Environmental Units large urban centers to Article 66 of Law 99 of 1993 is concerned, the environmental that Article 13 of Law 768 of 2002 and the Special Administrative Unit of National Natural Parks, UAESPNN of concerns public establishments Acting under the powers established by law and regulations.
PARÁGRAFO. In environmental matters, guilt or willful misconduct of the offender is presumed, which will lead to preventive measures. The offender shall be punished if not definitely detracts from the presumption of negligence or willful misconduct for which will have the burden of proof and may use all legal evidence. Effective Jurisprudence
Matches Article 2.
. FACULTY TO PREVENTION. The Ministry of Environment, Housing and Territorial Development; the Special Administrative Unit of National Parks; Regional Autonomous Corporations and Sustainable Development; Urban Environmental Units of large urban centers that Article 66 of Law 99 of 1993 refers to; public establishments which refers to Article 13 of Law 768 of 2002; the Navy; and departments, municipalities and districts are invested to prevent the respective authority in environmental punitive action. Consequently, these authorities are empowered to impose and enforce preventive and punitive measures enshrined in this law that are applicable, as appropriate, without prejudice to the legal powers of other authorities.
PARÁGRAFO. In any case sanctions may only be imposed by the competent environmental authority to grant the respective environmental license, permission, concession and other environmental authorizations and management tools and environmental control, exhaustion of the sanctioning procedure. For the above purpose, the authority that imposed the preventive measure shall forward those records to the competent environmental authority, within five (5) business days following the imposition of the same.
ARTICLE 3. GUIDING PRINCIPLES. the constitutional and legal principles governing administrative actions and environmental principles prescribed in article 1 of Law 99 of 1993. Effective Jurisprudence
environmental penalty procedure
ARTICLE 4. FUNCTIONS OF PUNISHMENT AND PREVENTIVE MEASURES ENVIRONMENTAL. Administrative sanctions in environmental matters have a preventive, corrective and compensatory function, to ensure the effectiveness of the principles and purposes set forth in the Constitution, international treaties, law and regulation.
Preventive measures, meanwhile, have the function to prevent, impede or prevent the continuation of the occurrence of an event, the performance of an activity or the existence of a situation that threatens the environment, natural resources, the landscape or human health.
VIOLATIONS IN ENVIRONMENTAL MATTERS.
The 5th ITEM. VIOLATIONS. infringement is considered in environmental matters any act or omission which constitutes a violation of the rules contained in the Code of Renewable Natural Resources, Decree Law 2811 of 1974, Law 99 of 1993, Act 165 of 1994 and other provisions environmental force in that substitute or modify and administrative act issued by the competent environmental authority. It will also establishing environmental offense the commission of a damage to the environment, with the same conditions as to set the tort establishes the Civil Code and complementary legislation, namely: Damage, the generator made with negligence or fraud and causal link between the two. When these elements are configured will result in an environmental administrative penalty, without prejudice to the responsibility that third parties can generate the fact in civil matters.
. Environmental violations in the negligence or willful misconduct of the offender, who shall be presumed rebut charge. Effective Jurisprudence
Matches PARAGRAPH 2.
. The offender shall be liable to third parties for compensation for damages caused by their action or omission.
ARTICLE 6o. GROUNDS FOR mitigation of responsibility ENVIRONMENTAL STANDARDS. They are extenuating circumstances in environmental matters as follows:
1. Confessing to the environmental authority before the punitive infringement procedure has started. cases of flagrante delicto excepted.
2. Compensate or mitigate damage on its own initiative, compensate or correct the damage caused before beginning the environmental sanctioning procedure, provided that such actions do not further damage is generated.
3. Infringement that there is no damage to the environment, natural resources, landscape or human health.
ARTICLE 7. GROUNDS FOR INCREASE OF LIABILITY IN ENVIRONMENTAL. Aggravating circumstances in environmental matters as follows:
1. Recidivism. In all cases the authority should consult the Ruia and any other means providing information about the past behavior of the offender.
2. The offense generate serious damage to the environment, natural resources, landscape or human health.
3. The offense to hide another.
4. Shirk responsibility or attributed to others.
5. Violating several laws with the same behavior.
6. Threatening natural resources located in protected areas or in any category declared threatened or endangered or on which there is prohibition, restriction or prohibition.
7. Perform the action or omission in areas of special ecological importance.
8. Obtain financial gain for himself or a third party.
9. Hinder the action of the environmental authorities.
10. The total or partial failure of preventive measures.
11. The offense is serious in relation to the value of the species affected, which is determined by their function in the ecosystem, for its particular characteristics and the degree of threat it is subject.
12. Violations involving hazardous waste.
PARÁGRAFO. It is understood endangered species that has been declared as such by treaties or international conventions approved and ratified by Colombia or has been declared in some category of threat by the Ministry of Environment, Housing and Territorial Development.
Article 8. DEFENCES OF LIABILITY. They are exculpatory of responsibility:
1. Events of force majeure, in accordance with the definition thereof contained in Law 95 of 1890.
2. The fact a third party, sabotage or terrorist act. Effective Jurisprudence
Article 9. GROUNDS FOR CESSATION OF PROCEDURE IN ENVIRONMENTAL. They are grounds for termination of the procedure the following:
1o. Death is investigated when a natural person.
2o. Nonexistence of the fact investigated.
3o. The conduct under investigation is not attributable to the alleged infringer.
4o. The activity is legally protected and / or authorized.
PARÁGRAFO. Consecrated in paragraphs 1st and the 4th causal operate without prejudice to continue the proceedings against the other investigated if any.
ARTICLE 10. REVOCATION OF THE ACTION. The punitive environmental action expires 20 years after the fact happened generator or omission of the infringement. If it were an act or omission successive, the term begins to run from the last day that has generated the act or omission. While the conditions of violation of rules or caused the injury persist, the action may be brought at any time. Effective Jurisprudence
loss of enforceability. Sanctions imposed and executed not lose enforceable under the terms of Article 66 of the Administrative Code or the regulations that substitute or add
Procedure for the imposition of preventive measures.
ARTICLE 12. PURPOSE OF PREVENTIVE MEASURES. Preventive measures are designed to prevent or inhibit the occurrence of an event, the performance of an activity or the existence of a situation that threatens the environment, natural resources, landscape and human health.
ARTICLE 13. INITIATION OF THE PROCEDURE FOR IMPOSING PREVENTIVE MEASURES. Once known fact, on its own initiative or upon request, the competent environmental authority shall check and establish the need to impose measure (s) Preventive (s), the (s) which (s) will be imposed (n) by act administrative motivated.
Noted the need to impose a preventive measure, the environmental authority shall impose a reasoned administrative act. PARAGRAPH 1.
. Environmental authorities may commission the implementation of preventive measures to administrative authorities and the security forces or be accompanied by them for this purpose. PARAGRAPH 2.
. In cases where a preventive measure is imposed to prevent by any of the authorities invested for it, will transfer of proceedings in a maximum term of five (5) business to the competent environmental authority days and compulsará copies of the proceeding conducted for continue with the procedure that may take place. PARAGRAPH 3.
. In the event of preventive confiscation shall make available to the environmental authorities individuals and seized specimens, products, materials and instruments confiscated or, the act by which the destruction, incineration or delivery were available for use or consumption by treated elements that represent danger or perishable items that may not be subject to storage and conservation, under the terms of Article 49 of this law.
ARTICLE 14. When an agent is caught in flagrante delicto. When an agent is caught in flagrante causing damage to the environment, natural or violating available resources that favor the environment without there being any permission from the competent environmental authorities, environmental authorities will impose precautionary measures to ensure the presence of the agent during the sanctioning process.
ARTICLE 15. PROCEDURE FOR IMPOSITION OF PREVENTIVE MEASURES FLAGRANCY. In the event of flagrante delicto requiring the imposition of a preventive measure in place and occurrence of events, it will proceed to draw up a report in which state the reasons which justify it; the authority that imposes; place, date and time of fixing; competent official, person, project, work or activity to which the preventive measure is imposed. The minutes shall be signed by the alleged infringer or, if he refuses to do so, will be signed by a witness. In the event that the signing of the act by the alleged offender or witness is not feasible, simply single subscription by the official in charge of the case. From the above you must leave the respective certificate. The minutes shall be legalized through an administrative act where conditions of preventive measures imposed, a term not exceeding three days will be established.
ARTICLE 16. CONTINUITY OF ACTION. It legalized the preventive measure by the administrative act, it shall, within no more than 10 days, to assess whether there is merit to start the sanctioning procedure. Not found sufficient merit to start the procedure, proceed to lift the preventive measure. Otherwise, the measure will be lifted once it is established that disappeared the causes that motivated it.
ARTICLE 17. PRELIMINARY INQUIRY. In order to establish whether or not there is merit to start the sanctioning procedure will be ordered a preliminary inquiry when the case demands.
The preliminary inquiry is intended to verify the occurrence of the conduct, whether constitutive environmental infringement or has acted under a ground for exemption from responsibility. The end of the preliminary inquiry will be up to six (6) months and will culminate in the order of opening file or definitive research.
The preliminary investigation may not extend to facts other than that was the subject of complaint, complaint or informal initiation and connected therewith.
ARTICLE 18. INITIATION OF THE PROCEDURE sanction. The sanctioning procedure will come on its own initiative, at the request of a party or as a consequence of a preventive measure has been imposed by reasoned administrative act, which will be personally notified in accordance with the provisions of the Administrative Code, which have the start of the penalty procedure to verify the acts or omissions constituting infringement of environmental regulations. In cases of flagrante delicto or confession will proceed to receive releases.
ARTICLE 19. NOTICES. In environmental punitive actions notifications will take under the terms of the Administrative Code.
ARTICLE 20. INTERVENTION. Originally the sanctioning procedure, any person may intervene to give evidence or assist the competent official as appropriate under the terms of Articles 69 and 70 of Law 99 of 1993. It will be supported by the police authorities and bodies exercising functions of control and environmental monitoring.
ARTICLE 21 REFERRAL TO OTHER AUTHORITIES. If the material facts of the punitive proceedings constitute an offense, disciplinary offense or other administrative infraction, the environmental authority will inform the relevant authorities of the facts and accompanied by copies of the relevant documents.
PARÁGRAFO. The existence of an administrative criminal proceedings, disciplinary or will not lead to the suspension of the environmental sanctioning procedure.
ARTICLE 22. VERIFICATION OF THE FACTS. The competent environmental authority may make all kinds of administrative work as technical visits, sampling, laboratory tests, measurements, characterizations and any actions it deems necessary and appropriate to determine with certainty the facts constituting infringement and complete the evidence.
ARTICLE 23. CESSATION OF PROCEDURE. When appears fully demonstrated any of the grounds mentioned in article 9 of the bill, and will be declared by administrative act motivated and order all proceedings against the alleged infringer, which must be notified of the decision. The cessation of proceedings can only be declared before the car arraignment, except in the case of death of the offender. This administrative act shall be published in the terms of Article 71 of Law 99 of 1993 and against him proceeds the administrative appeal under the conditions set out in Articles 51 and 52 of the Administrative Code. Effective Jurisprudence
arraignment. When there is merit to continue the investigation, the competent environmental authority through an administrative act properly motivated, proceed to press charges against the alleged infringer with environmental regulations or causing environmental damage. In the statement of objections must be explicitly enshrined the actions or omissions constituting the offense and individualized environmental standards are estimated raped or damage. The administrative act which contains the statement of objections shall be notified to the alleged infringer in person or by edict. If the environmental authority does not have an effective means to perform personal notification within five (5) days after the formulation of the statement of objections, it shall proceed in accordance with the procedure set out in Article 44 of the Administrative Code. The edict will remain fixed at the Legal Secretariat or dependence in its stead in the respective entity for a period of five (5) calendar days. If the alleged offender is submitted to personally served within the term of the notice is posted, you will be given simple copy of the administrative act, aware of this situation will be left in the dossier and the decree will remain fixed until the expiration of the previous term. This last aspect must be fulfilled for all purposes that notification within the environmental edict sanctioning process takes place.
For all purposes, the administrative appeal within the environmental sanctioning procedure shall be granted in the devolution effect. Effective Jurisprudence
ARTICLE 25. DISCLAIMERS. Within ten working days of notification of the statement of objections to the alleged infringer this, directly or by proxy duly constituted, you may submit arguments in writing and provide or request the taking of evidence it deems relevant and which are conducive.
PARÁGRAFO. Expenses incurred practice test will be in charge upon request. Effective Jurisprudence
ARTICLE 26. PRACTICE TEST. Once the term indicated in the previous article, the environmental authority shall order the taking of evidence which have been requested in accordance with the criteria of appearance, relevance and need. In addition, ex officio shall order it deems necessary. Ordinates tests are carried out in a period of thirty (30) days, which may be extended only once and up to 60 days, supported by a technical concept that establishes the need for a greater period for execution of the tests.
PARÁGRAFO. Against the administrative act that denies the practice of evidence requested, the remedy of reinstatement. The competent environmental authority may commission other authorities decreed the practice of evidence.
ARTICLE 27. DETERMINATION OF LIABILITY AND PUNISHMENT. Within fifteen (15) business days following the filing of rebuttals or the expiration of the probationary period, as appropriate, by reasoned administrative act, will not declare or offender accountability for violation of environmental standards and impose the sanctions that may apply.
PARÁGRAFO. In the event of being tried any of the cases provided for in Articles 8 and 22 of this Act with respect to one or more of the alleged offenders, a duly motivated administrative act be declared the alleged offenders, as appropriate, exonerated of liability and, if appropriate, the record to be ordered. Effective Jurisprudence
ARTICLE 28. NOTIFICATION. The administrative act to end an environmental sanction process must be notified to the interested and involved third parties duly recognized in the terms and conditions outlined in the Administrative Code.
ARTICLE 29. ADVERTISING. The administrative act to end an environmental sanction process will be published in accordance with Article 71 of Law 99 of 1993.
ARTICLE 30. RESOURCES. Against the administrative act to end an environmental research sanctioning the remedy of replacement and whenever there is superior, the appeal, which must be brought under the terms and conditions set forth in the Administrative Code.
PARÁGRAFO. The administrative acts issued in development of environmental sanctioning procedure, be firm in accordance with Article 62 of the Administrative Code.
countervailable. The imposition of a penalty does not exempt the offender's compliance with the measures that the competent environmental authority deems appropriate setting to compensate and restore the damage or the impact caused by the infringement. The sanction and countervailing measures or repair must keep a strict proportionality. Effective Jurisprudence
TITLE V. PREVENTIVE MEASURES AND SANCTIONS.
ARTICLE 32. NATURE OF PREVENTIVE MEASURES. Preventive measures are implemented immediately, they have preventive and temporary nature, produce their immediate effects, against them no recourse and shall apply without prejudice to the penalties that might arise. Effective Jurisprudence
ARTICLE 33. PREVENTIVE MEASURES ON FOREIGN AGENTS AND PROPERTY. Preventive may be applied to foreign persons and goods, provided the goods or persons are within the national territory. In the event that the suspended agent has residence in a foreign country, the environmental authority shall send the order start and finish of the sanction process to the Colombian Foreign Ministry so that it's sent to the country of residence of the alleged offender and the case is sanctioned, Chancery forward the necessary steps to enforce the penalty imposed. Effective Jurisprudence
ARTICLE 34. COSTS OF TAXATION OF PREVENTIVE MEASURES. The costs incurred by the environmental authority on the occasion of preventive measures such as: transportation, storage, insurance, among others, be borne by the offender. In case of lifting of the measure, costs must be paid before you can return the good or restart or reopen the work.
ARTICLE 35. LIFTING OF PREVENTIVE MEASURES. Preventive measures will be lifted on its own initiative or upon request, where it is found to have disappeared the causes that originated them.
ARTICLE 36. TYPES OF PREVENTIVE MEASURES. The Ministry of Environment, Housing and Territorial Development, the Regional Autonomous Corporations, the Sustainable Development and Environmental Units of large urban centers, public institutions dealing with Law 768 of 2002 and the Special Administrative Unit of National Natural Parks , shall require the offender of environmental standards, supported by reasons and according to the severity of a violation or some of the administrative act following preventive measures:
Preventive Confiscation of products, components, means or devices used to commit the offense.
Preventive Apprehension of specimens, products and byproducts of wild fauna and flora.
Suspension of work or activity may arise when harm or danger to the environment, natural resources, landscape or human health or where the project, work or activity is started without permission, concession, authorization or environmental license or executed in violation of the terms thereof.
PARÁGRAFO. The costs incurred by the environmental authority for the imposition of preventive measures such as storage, transport, security, parking, destruction, demolition, among others, are borne by the offender. Effective Jurisprudence
ARTICLE 37. Written warning. It consists of written call who has allegedly violated environmental standards without seriously jeopardize the integrity or permanence of natural resources, landscape and people's health care. The warning may include attending compulsory courses in environmental education. The offender who fails the course citation shall be punished by a fine equivalent to five (5) monthly minimum wage. This procedure must comply with due process, according to article 3 of this law. Effective Jurisprudence
ARTICLE 38. SEIZURE AND PREVENTIVE ARREST. It consists of the material and temporal specimens of fauna, flora, aquatic resources and other exotic wildlife apprehension and products, elements, media, equipment, vehicles, raw materials or devices used to commit environmental infringement or produced as a result of the same.
When apprehended elements represent danger to human, plant or animal health, the environmental authority shall immediately proceed to their disablement, destruction or incineration at the infringer. Perishable products that can not be subject to storage and conservation may be delivered for use by public bodies, charities or rehabilitation, after approval of the competent health institution in the place where the property subject to confiscation may be. Otherwise, it proceeds to its destruction or incineration, after registration of the fact in the minutes.
PARÁGRAFO. It is understood by exotic species or taxonomic subspecies, race or variety whose natural area of geographic dispersion does not extend to the territory or territorial waters and if you are in the country, is as voluntary or involuntary result of human activity. " PARAGRAPH 1.
. The environmental authority may directly or through interagency agreements with third parties, the use of the elements, media, equipment, vehicles or implements for which despite a measure of preventive seizure under the terms of this Article, with the exclusive order to meet the needs related to the reasons for the emergency declaration referred to Decree 4580 of 2010 and in particular:
- the construction and / or rehabilitation of infrastructure and activities for the flow control, correction and management of rivers, runoff control, erosion control works geotechnics, regulation of rivers and streams and other works and biomechanical management activities of soil, water and vegetation of those watershed areas.
- The restoration, restoration, conservation and protection of plant cover, plant enrichment and isolation of areas to facilitate natural succession of those areas.
- Rehabilitation of the road network affected by disaster.
- Work search and rescue and first aid.
- Housing Recovery (damaged and destroyed), and
- Emergency Works (reinforcement of embankments, control works) and works of prevention and mitigation in the area.
- Construction and / or rehabilitation works of water supply and environmental sanitation. Effective Notes
. The use of confiscated items previously communicated to the subjects involved in the sanctioning process without facing any appeal this decision in the appropriate government channels. Use shall be suspended immediately if the environmental authority decides to lift the preventive measure, or the termination of sanctions proceedings without administrative responsibility for the alleged offender is declared. This, notwithstanding that agreed with the holder of the prolongation use any title in the care of the work or respective need. Effective Notes
. From the moment the use is authorized, public or private entity using confiscated property will be responsible for transportation costs, fuel, parking, care, taxes and preventive and corrective maintenance as required, which in case that the punitive administrative proceedings concluded without the declaration of responsibility of the alleged offender, they may not be charged to the owner of the property as a condition for its return.
Likewise, public or private entity that makes use of confiscated property shall, obligatorily, the costs incurred by making policies that ensure all risks, to the benefit of the holders of such goods. The return of the same, when the measure is lifted or when the termination of punitive administrative proceeding is given without a declaration of administrative responsibility for the alleged offender will be in the state in which they were delivered, except for normal wear things. Effective Notes
ARTICLE 39. SUSPENSION OF WORK, project or activity. It consists of the order to cease for a specified time set by the environmental authority, the implementation of a project, work or activity when its realization can arise damage or danger to natural resources, the environment, the landscape or human health or when it has started without the environmental license, permit, license or authorization or when the terms, conditions and obligations contained therein are infringed. Effective Jurisprudence
ARTICLE 40. SANCTIONS. The sanctions provided for in this Article shall be imposed as a principal or accessory to responsible for environmental infringements. The Ministry of Environment, Housing and Territorial Development, the Regional Autonomous Corporations, the Sustainable Development, the Environmental Units of large urban centers where referred to in Article 66 of Law 99 of 1993, public establishments covered by Article 13 of Law 768 of 2002 and the Special Administrative Unit of the National Parks System, shall require the offender of environmental standards, according to the gravity of the infringement reasoned decision, one or more of the following sanctions:
1. daily for up to five thousand (5,000) monthly legal minimum wage penalties.
2. temporary or permanent closure of the establishment, construction or service.
3. Environmental revocation or expiration of license, authorization, license, permit or registration.
4. Demolition work at the infringer.
5. final confiscation of specimens, exotic wildlife species, products and by-products, elements, means or devices used to commit the offense.
6. Restitution of specimens of species of wild fauna and flora.
7. Community work according to conditions set by the environmental authority. PARAGRAPH 1.
. The imposition of sanctions outlined here does not exempt the offender to perform the works or actions ordered by the competent environmental authority, or restore the environment, natural resources or the affected landscape. These penalties are without prejudice to any civil, criminal and disciplinary actions as may be appropriate. Effective Jurisprudence
. The National Government through regulations define the criteria for the imposition of sanctions referred to in this Article, defining mitigating and aggravating. the extent of environmental damage and socio-economic conditions of the offender be taken into account. Effective Jurisprudence
ARTICLE 41. PROHIBITION OF RETURN OF WILD SPECIMENS OR ILLEGAL RESOURCES FROM FARMS. When the fauna, flora and other natural resources seized or confiscated preventively are the result of illegal logging, shall not, in any case, returning them to the offender, except in the case considered in Article 52, paragraph 6
ARTICLE 42. EXECUTIVE MERIT. The administrative acts issued by the environmental authorities to impose financial penalties lend executive merit and collection is done through coercive jurisdiction.
PARÁGRAFO. The value of financial penalties imposed by the Ministry of Environment, Housing and Territorial Development, into a special subaccount Fonam.
ARTICLE 43. FINES. It consists of payment of a sum of money that the environmental authority who imposes his act or omission violates environmental standards. Effective Jurisprudence
ITEM 44. CLOSURE OF THE ESTABLISHMENT temporary or permanent, BUILDING OR SERVICE. It is to end the activities or tasks that they develop, by the existence of facts or conduct contrary to environmental regulations. It is temporary if imposed for a certain period of time and is definitive when so specified or a limit is not fixed in time.
The closure may be imposed for the entire establishment, building or service or only for a part or process that is developed on it. Once firm administrative act through which a penalty of temporary or permanent closure is imposed, will not preempt any activity in the construction, establishment or service. If the closure rests on a part of the establishment, building or service, you can not anticipate the specific activity in the area, area or closed section. In either case the sanctioned may develop needed for the necessary maintenance of the property.
The competent environmental authority shall take appropriate measures for the implementation of the sanction and shall be effected by the imposition of stamps, bands or other appropriate means to ensure compliance with the sanctions. Effective Jurisprudence
ARTICLE 45. REVOCATION OR REVOCATION OF LICENSE, permission, concession, authorization or registration. It is to annul administrative acts through which the environmental license, permit, authorization, concession or registration was granted. Effective Jurisprudence
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