ACT 1448 2011
Official Gazette No. 48,096 of June 10, 2011 CONGRESS OF THE REPUBLIC
By which measures attention, assistance and reparation are dictated to victims of the internal armed conflict and other provisions. Summary
THE CONGRESS OF THE REPUBLIC DECREES:
TITLE I. GENERAL PROVISIONS.
CHAPTER I. PURPOSE, SCOPE AND DEFINITION OF VICTIM.
ARTICLE 1o. OBJECT. This law aims to establish a set of administrative, social and economic, individual and collective legal action, for the benefit of victims of violations referred to in article 3 of this law, within a framework of transitional justice, which it possible to realize the enjoyment of their rights to truth, justice and reparation to guarantee non-repetition, so that their status as victims recognize and dignify through the realization of their constitutional rights.
. FIELD OF LAW. This law regulates concerning humanitarian aid, care, assistance and reparation for victims dealt with in article 3 of this law, offering tools for these reclaim their dignity and assume their full citizenship.
Care measures, assistance and compensation for indigenous peoples and Afro-Colombian communities, will be part specific to each of these ethnic groups rules, which will be previously consulted in order to respect their customs and their rights groups, in accordance with the provisions of Article 205 of this law.
ARTICLE 3. VICTIMS. They are considered victims for the purposes of this law, those who individually or collectively have suffered harm by events that occurred from January 1, 1985, as a result of violations of international humanitarian law or serious and flagrant violations of the rules international Human Rights, that occurred during the internal armed conflict. Effective Jurisprudence
They are also victims spouse, permanent partner, same-sex couples and family in the first degree of consanguinity, civil first direct victim, when this has been accorded to death, or is missing. In the absence of these, it will be those who are in the second degree of consanguinity up. Effective Jurisprudence
Likewise, people are considered victims who have suffered harm in intervening to assist victims in distress or to prevent victimization.
The status of victim is acquired independently of that individualize, apprehended, prosecuted or convicted perpetrator of the criminal offense and the familial relationship between the perpetrator and the victim. PARAGRAPH 1.
. When members of the security forces are victims under the terms of this Article, the financial compensation shall in every respect to which they are entitled under the special regime applicable to them. In the same way, they have the right to measures of satisfaction and guarantees of non-repetition indicated in this law. Effective Jurisprudence
. Members of organized illegal armed groups will not be considered victims, except in cases where children or adolescents shall have been disconnected organized the illegal armed group were minors. Effective Jurisprudence
For the purposes of this Act, the spouse, permanent partner, or relatives of members of armed groups operating outside the law they will be considered as direct victims for the damage suffered on their rights in terms of this article, but not as indirect victims for the damage suffered by members of these groups. Effective Jurisprudence
. For the purposes of the definition contained in this Article, they will not be considered victims who have suffered damage to their rights as a result of acts of common criminals. Effective Jurisprudence
PARÁGRAFO 4o. People who have been victims of acts occurring before January 1, 1985 are entitled to the truth, measures of symbolic reparation and guarantees of non-repetition under this law, as part of the social conglomerate and without that are individualized . Effective Jurisprudence
PARÁGRAFO 5O. The definition of victim referred to in this article, in no case be interpreted or presumed endorsement of a political nature on terrorist groups and / or illegal armed, who have caused damage to the terms as fact victimizing this law, the framework of International Humanitarian law and Human Rights, in particular the provisions of the common third article (3rd) to the Geneva Conventions of 1949. the exercise of the powers and functions assigned under the Constitution manner, the law and regulations of the Armed Forces combat other criminal actors, will not be affected at all by the provisions of this law.
ARTICLE 4. DIGNITY. The axiological foundation of the rights to truth, justice and reparation, is respect for the integrity and honor of the victims. Victims should be treated with consideration and respect, participate in decisions that affect them, for which they have information, advice and support required and get effective protection of their rights under the constitutional mandate, positive duty and principle of dignity.
The State undertakes to advance priority actions aimed at strengthening the autonomy of the victims for care measures, assistance and compensation provided for in this law, contribute to recover as citizens in full exercise of their rights and duties.
The 5th ITEM. PRINCIPLE OF GOOD FAITH. The State presumed good faith of victims covered by this law. The victim can prove the damage suffered by any means legally accepted. Consequently, it is sufficient to prove the victim summarily damage suffered by the administrative authority, that is appropriate to relieve her of the burden of proof.
In processes in which administrative reparation measures are resolved, the authorities should go to test rules that facilitate victims suffered damage show and always apply the principle of good faith in favor of these.
In the judicial processes of land restitution, the burden of proof shall be governed by the provisions of Article 78 of this Law.
ARTICLE 6o. EQUALITY. The measures provided for in this law shall be recognized regardless of gender, respecting freedom or sexual orientation, race, social status, profession, national or family origin, language, religious belief, political or philosophical opinion.
ARTICLE 7. WARRANTY DUE PROCESS. The State through the competent bodies must ensure fair and effective process, set in the conditions set out in Article 29 of the Constitution.
Article 8. Transitional justice. Understood by transitional justice different processes and judicial and other mechanisms associated with attempts to society to ensure that those responsible for the violations referred to in article 3 of this Act, accountable for their actions, rights are met to justice , truth and full reparation to victims, carried out the institutional reforms necessary for the non-repetition of the facts and the dismantling of illegal armed groups, with the ultimate aim of achieving national reconciliation and lasting and sustainable peace .
Article 9. NATURE OF THE TRANSITIONAL MEASURES. The State recognizes that every individual who is considered a victim under the terms of this law, has the right to truth, justice, reparation and that the violations dealt with in article 3 of this law, can not happen again, regardless who is responsible for the crimes.
Measures care, assistance and reparation adopted by the State, shall aim to help victims sobrelleven their suffering and, as far as possible, the restoration of rights that have been violated them. These measures should be construed as transitional tools to meet and exceed the violations referred to in article 3 of this Act.
Therefore, measures of care, assistance and repair contained in this law, as well as all those who have been or will be implemented by the State with the aim of recognizing the rights of victims to truth, justice and repair, do not imply recognition or may be presumed or construed as recognition of State responsibility, derived from imputable unlawful damage to this under the terms of Article 90 of the Constitution, nor any other liability to the State or its agents .
The fact that the state recognizes the quality of victim under the terms of this law, shall not be taken into account by any judicial or disciplinary authority as proof of the responsibility of the State or its agents. Such recognition will not revive the terms of expiration of the action for direct reparation.
In the context of transitional justice competent judicial and administrative authorities should adjust their actions to the primary objective of achieving reconciliation and lasting and stable peace. For these purposes should take into account fiscal sustainability, the magnitude of the consequences of the violations dealt with in article 3 of this Act, and the nature of them. Effective Jurisprudence
In events where victims come to the administrative courts in the exercise of the action for direct reparation, when assess the amount of compensation, judicial authority shall evaluate and take into account the amount of compensation in favor of victims has been adopted by the State, for it is contemplated the transitional nature of the measures to be implemented under this law. Effective Jurisprudence
ARTICLE 10. CONVICTIONS IN SUBSIDIARITY. Court sentences to order the State to repair economically and additionally a victim due to insolvency, inability to pay or lack of resources or assets of the perpetrator convicted or organized outside the law to which this belonged armed group, do not imply recognition or may be presumed or construed as recognition of the responsibility of the State or its agents.
In criminal proceedings in which the offender is convicted, whether the state should attend vicariously compensate the victim, payment must recognize that this will be limited to the amount established in the corresponding regulation for individual compensation by administrative authority of covered by this law in Article 132, without prejudice to the obligation victimizer head of recognizing the entire compensation or reparation ordered in the judicial process. Effective Jurisprudence
ARTICLE 11. EXTERNAL CONSISTENCY. The provisions of this law seeks to complement and harmonize the various efforts of the State to guarantee the rights to truth, justice and reparation for victims, and pave the way towards peace and national reconciliation.
ARTICLE 12. INTERNAL CONSISTENCY. The provisions of this law, seeks to complement and harmonize measures of restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition, in order to pave the way towards peace and national reconciliation.
ARTICLE 13. Focus. The principle of differential approach recognizes that there are populations with particular characteristics because of their age, gender, sexual orientation and disability status. For this reason, measures of humanitarian aid, care, assistance and reparation established in this law, will have such an approach.
The State shall provide special guarantees and protection measures for groups at higher risk of violations referred to in article 3 of this Law such as women, youth, children, the elderly, persons with disabilities, peasants, social leaders, union members, human rights defenders and victims of forced displacement.
For this purpose, in the implementation and adoption by the National Government policies and repair assistance in development of this law, differential criteria that meet the characteristics and vulnerability of each of these population groups should be adopted .
The State also made efforts to care measures, and repair assistance contained in this Act, contribute to the elimination of discrimination and marginalization schemes that could be the cause of victimizing events.
ARTICLE 14. Joint participation. Overcoming manifest vulnerability of the victims involves performing a series of actions comprising:
The duty of the State to implement the measures of care, assistance and reparation to victims.
The duty of solidarity and respect for civil society and the private sector with the victims, and support the authorities in repair processes; and
The active participation of victims.
ARTICLE 15. MUTUAL RESPECT. The actions of officials and requests raised by victims under the procedures resulting from this law are always governed by mutual respect and cordiality.
The State shall remove administrative obstacles to the real and effective access of victims to measures of care, assistance and repair.
ARTICLE 16. OBLIGATION TO PUNISH THOSE RESPONSIBLE. The arrangements described in this law, do not relieve the State of its responsibility to investigate and punish those responsible for the violations referred to in article 3 of this Act.
ARTICLE 17. ESCALATION. The principle of progressivity implies a commitment to initiate processes that lead to the effective enjoyment of human rights, an obligation that adds to the recognition of minimum or essential content satisfaction of those rights that the State must guarantee to all people, and go acrecentándolos gradually. Effective Jurisprudence
GRADUALITY. The principle of gradualism involves the State responsible for designing operational tools scope defined in time, space and budgetary resources to the phased implementation of programs, plans and projects of care, assistance and repair, without ignoring the obligation to implement all the country in a given period, while respecting the constitutional principle of equality.
ARTICLE 19. SUSTAINABILITY. In order to comply with the measures of humanitarian aid, care, assistance and compensation provided for in this framework, the national government within six (6) days following the issuance of this Law months, will create a National Financing Plan by a CONPES document that aims for the sustainability of the law, and take the necessary measures to ensure preferentially effective prosecution of the assets of their torturers in order to strengthen the Fund repairs covered by Article 54 of law 975
2005. the development of the measures referred to in this law shall be done in a way that ensures fiscal sustainability in order to give them, together, continuity and progression, in order to ensure its viability and effective compliance . Effective Jurisprudence
ARTICLE 20. PROHIBITION PRINCIPLE OF DOUBLE REPAIR AND COMPENSATION. The compensation received by administrative means be discounted to repair that is defined by the courts. No one can receive double compensation for the same concept.
COMPLEMENTARITY PRINCIPLE. All measures of care, assistance and repair should be established in harmony and work for the protection of the rights of victims.
Both individual reparations, whether administrative or judicial, as collective reparations or collective, must be complementary to achieve comprehensiveness.
ACTION REPLAY and subrogation. The State must carry out the actions of repetition and those in which subrogates in accordance with the law, against the directly responsible for the crime as determined in the appropriate legal proceedings.
ARTICLE 23. RIGHT TO THE TRUTH. The victims, their families and society in general have the imprescriptible and inalienable right to know the truth about the motives and circumstances in which violations dealt with in article 3 of this law were committed and in case of death or disappearance, the fate of the victim, and to clarify his whereabouts. The Attorney General's Office and judicial police agencies shall ensure the right to search for victims while they are not found alive or dead.
The State must ensure the right and access to information by the victim, his representatives and attorneys in order to enable the realization of their rights under the rules that establish and regulate legal reserve management confidential information.
ARTICLE 24. RIGHT TO JUSTICE. It is the duty of advancing an effective investigation leading to the clarification of the violations referred to in article 3 of this Act, the identification of those responsible and their punishment state.
The victims have access to measures of care, assistance and repair covered by this law or other legal instruments on the subject, without prejudice to their right of access to justice.
ARTICLE 25. RIGHT TO REPAIR INTEGRAL. Victims are entitled to be repaired properly, differentiated, transforming and effective for the damage they have suffered as a result of the violations dealt with in article 3 of this Law.
The repair includes measures of restitution, compensation , rehabilitation, satisfaction and guarantees of non-repetition, in their single dimensions, collective, material, moral and symbolic. Each of these measures will be implemented in favor of the victim depending on the violation of his rights and characteristics of the victimizing fact. PARAGRAPH 1.
. Additional assistance measures enshrined in this law tend for full compensation of victims and are considered complementary to the reparation measures to increase their impact on the beneficiary population. Therefore, the remedial effect of the measures of assistance provided for in this law, to the extent that enshrine in addition to those developed in the context of the social policy of the National Government for the vulnerable population shares are recognized, including prioritization criteria as well as characteristics and elements that respond to the specific needs of victims.
However this remedial effect of the measures of assistance, they do not replace or supersede the remedial measures. Therefore, cost or expenses incurred by the State in providing assistance services, in no case be deducted from the administrative or judicial entitled to compensation for victims. PARAGRAPH 2.
. Humanitarian aid defined in the terms of this law is not repair and therefore neither be deducted from the administrative or judicial entitled to compensation for victims.
ARTICLE 26. HARMONIC COLLABORATION. State entities must work in harmony and coordinated to fulfill the purposes of this law, without prejudice to their autonomy way.
ARTICLE 27. APPLICATION REGULATIONS. In the provisions of this Act, shall prevail in international treaties and conventions ratified by Colombia on International Humanitarian Law and Human Rights that prohibit their limitation during states of emergency, to be part of the constitutionality block. In the case of administrative reparations, the interpreter of the standards enshrined in this law is the duty of choosing and applying the regulation or interpretation most favorable to the dignity and freedom of the human person and the effective date of the Human rights of victims. Effective Jurisprudence
ARTICLE 28. RIGHTS OF VICTIMS. The victims of the violations referred to in article 3 of this Act shall have among others the following rights under the current regulations:
1. Right to truth, justice and reparation.
2. Right to go to scenarios of institutional and community dialogue.
3. Right to be a beneficiary of affirmative action taken by the State to protect and guarantee the right to life in dignity.
4. Right to request and receive humanitarian assistance.
5. Right to participate in the formulation, implementation and monitoring of public policy of prevention, care and full compensation.
6. Right to public policy that treats this law, have differentiated approach.
7. Right to family reunification when by reason of their type of victimization has been split family.
8. Right to return to their place of origin or resettle in conditions of voluntariness, safety and dignity, within the framework of national security policy.
9. Right to land restitution if he has been stripped of her, under the terms established in this Act.
10. Right to information about routes and means of access to the measures provided for in this Act.
11. Right to know the status of judicial and administrative processes that are ahead, in which they have an interest as part of or involved. Effective Jurisprudence
12. Right of women to live free from violence.
DEVELOPMENT OF THE PRINCIPLE OF PARTICIPATION JOINT. Under the principle of joint participation established in this law, victims must:
Provide accurate and complete to the authorities responsible for the registration and monitoring of their situation or that of your home information, at least once a year, unless there are compelling reasons not justified provide this information. The authorities shall ensure the confidentiality of information provided by victims and exceptionally may be known by different entities that make up the National System of Care and Repair Victims for which they sign a confidentiality agreement regarding the use and management of information.
Make use of the mechanisms of attention and repair in accordance with the objectives for which they were granted.
ARTICLE 30. PRINCIPLE OF ADVERTISING. The State through various entities to which responsibilities regarding the measures envisaged in this law are allocated, should promote effective mechanisms of advertising, which will be directed to victims. Through these they should provide information and guidance to victims about their rights, measures and resources that account, as well as on the media and judicial and administrative routes through which they can access the exercise of their rights.
ARTICLE 31. SPECIAL PROTECTION MEASURES. The competent authority shall take measures for the comprehensive protection of victims, witnesses and public officials involved in administrative and judicial proceedings repair and especially land restitution, through which the victims claim their rights, where this is necessary according to the risk level assessed for each individual case, and to the extent that there is threat to their fundamental rights to life, physical integrity, liberty and personal security, based on case law and existing regulations on the matter.
These measures may be extended to the family nucleus, where this is necessary according to the risk level assessed for each individual case, there is threat to the fundamental rights to life, physical integrity, liberty and personal security of the household and it is demonstrated relationship with the victim. The technical study of risk level will enjoy reserved and confidential.
When judicial, administrative or the Public Ministry authorities are aware of risk situations mentioned in this Article, shall transmit such information immediately to the competent authority designated according to protection programs, to initiate the urgent procedure leading the protection of the victim, according to the assessment of risk to which this article refers. PARAGRAPH 1.
. Protection programs covered by this Act, be developed within the framework of existing programs in the field, at the time of issuance of this Law, and ensuring consistency with the policies of national security and defense. PARAGRAPH 2.
. Given that the process of judicial and administrative redress may pose a special risk to victims and government officials involved in these proceedings, should establish measures sufficient countermeasures to mitigate those risks, for which the information is taken into account the Early Warning System of the Ombudsman if it is the case. Especially in those municipalities where they are advancing processes of restitution, municipal governments should formulate strategies for public security jointly with the Ministry of Interior and Justice, the Ministry of Defence and the Ministry of Agriculture and Rural Development, to to prevent damages to the rights of victims, their representatives and officials.
The foregoing is without prejudice to the protection measures covered by this law according to risk analysis. PARAGRAPH 3.
. The definition of protective measures for women victims should take into account the forms of aggression, the characteristics of the risks they face, difficulties to protect their aggressors and vulnerability to them.
ARTICLE 32. CRITERIA AND ELEMENTS FOR REVIEW AND IMPLEMENTATION OF PROGRAMS OF INTEGRAL PROTECTION. Protection programs should include in its review and implement a comprehensive basis that includes the following criteria:
1. Protection programs should provide for proportionate measures the level of risk of the victim before, during and after their participation in judicial or administrative proceedings referred to in the regulations related to those programs.
2. The criteria for risk assessment established by the jurisprudence of the Constitutional Court and the decision of the protective measure must be previously known by the victim or witness.
3. Risk and generate factors that must be identified and assessed in accordance with the law that the Constitutional Court has set about it. The risk must be evaluated periodically and updated measures according to the evaluation, in accordance with current regulations.
4. Protective measures should be timely, targeted, appropriate and efficient protection of the victim or witness. Having decided on the measure of protection by the competent body, the victim or witness may suggest alternative or complementary measures to determined if it considers that this is not appropriate for the particular circumstances of the case. The competent body shall determine the suitability, feasibility and applicability. This will be done within the existing institutional offer protection.
5. Protection programs without discrimination must protect victims and witnesses whose life, security and freedom are at risk during their participation in judicial or administrative proceedings referred to in the regulations related to those programs. Therefore, programs establish measures regardless of the type of crime being investigated or judges, the alleged perpetrator of the act, the date of occurrence of the offense or judicial or administrative procedure for claiming rights, provided there a clear causal link between the threats and the participation of the victim or witness in any judicial or administrative proceeding or impediment to participate in it.
6. Protection programs, the criteria for the evolution of risk and decisions on measures required to respond to and take into account gender differential criteria, capacity, culture and life cycle, in accordance with the jurisprudence of the Constitutional Court.
7. Protection programs should be in permanent coordination with victim assistance programs in order to address the trauma caused by the victimizing act and the risk generated.
8. Interviews with victims within the framework of the protection program must be carried out in safe and confidential sites, particularly when they involve women, children and adolescents.
9. Permanent information should be given to the judicial and administrative authorities to advance research processes that caused or aggravated the risk, in order that during the same take into account the situation of the victim and witness. In particular, the reasons that may prevent or hinder the participation of the victim or witness in the proceedings and corrective measures be taken to encourage their participation is not obstructed be taken into account. PARAGRAPH 1.
. In addition to the criteria outlined in this article, for the review, design and implementation of comprehensive protection programs should take into account the following elements:
The Ministry of National Defense and the Armed Forces, in coordination with the Ministry Interior and Justice, the Ministry of Agriculture and Rural Development through the Special Administrative Management Unit Stripped Lands, will take steps to ensure safety in restitution processes prior measures, during and after are carried out .
Community and victims' organizations with a presence in areas where out processes of restitution and collective reparations are carried, may deliver supplies to the competent bodies for identification and risk analysis.
The competent authorities will launch a sustained campaign in prevention, security and defense of the rights of victims to promote social solidarity at local and national level. PARAGRAPH 2.
. Review and compliance with the criteria set out in this article existing protection programs must be made within a period not exceeding six (6) months from the effective date of this law.
ARTICLE 33. PARTICIPATION OF CIVIL SOCIETY AND THE PRIVATE COMPANY. This law recognizes that transitional efforts which promote the realization of the rights of victims, especially repair, involving the State, civil society and the private sector. For this purpose, the Government will design and implement programs, plans, projects and policies that aim to involve civil society and private enterprise in achieving national reconciliation and the realization of the rights of victims.
ARTICLE 34. COMMITMENTS OF THE STATE. The Colombian government reiterates its real and effective commitment to respect and enforce the constitutional principles, treaties and conventions and instruments that are part of the constitutional preventing an act of his or its agents, regardless of their ideological or electoral origin, cause any violation of any of the people on its territory, especially under the circumstances that inspired this law.
VICTIMS 'RIGHTS WITHIN THE JUDICIAL PROCEEDINGS.
COUNSELING INFORMATION AND SUPPORT. The victim and / or his representative shall be informed of all legal, health care, therapeutic or other relevant related to your case, since the beginning of the performance aspects. To this end, the authorities involved in the initial proceedings, the judicial police officials, advocates of family and family commissaries in the case of children and adolescents, prosecutors, judges or members of the Public Ministry must provide the following information:
1. Entities or organizations to which they can turn for advice and support.
2. Services and guarantees they are entitled or may be found in the various entities and organizations.
3. The place, the way, the authorities and requirements for filing a complaint.
4. Subsequent to the complaint and the rights and victim mechanisms can be used in each performance. The authorities should inform women about right not to be confronted with the aggressor or aggressors.
5. The authorities before which can seek protection and minimum requirements and conditions that must prove to access the programs.
6. Entities and / or authorities who can provide guidance, legal advice or services free legal representation.
7. The competent institutions and the rights of victims' families in the search, exhumation and identification in cases of forced disappearance and prevention measures for the recovery of victims.
8. The procedures and requirements for the effective exercise his rights as a victim. PARAGRAPH 1.
. Faced with crimes against freedom, integrity and sexual education, as well as crimes against personal freedom and integrity as the forced disappearance and kidnapping, the authorities involved in the initial proceedings must provide guarantees of reinforced information by specialized personnel psychosocial care, about the institutions they should go for specialized medical and psychological assistance, as well as against their rights and the legal route to follow. PARAGRAPH 2.
. In each of the public entities in which care and / or assistance to victims is provided, will be available trained personnel in care of victims of sexual violence and gender, to advise and assist the victims.
ASSURANCE ARTICLE 36. COMMUNICATION TO VICTIMS. In order to enforce their rights in the criminal proceedings or in the context of the processes of justice and peace, victims should be informed of the initiation, development and completion of the process instances that can participate, judicial remedies available and the opportunity to present evidence, including guarantees provided for in the existing legislation. In particular, the prosecutor, judge or magistrate shall inform the victim about:
1. Course or action taken on his complaint.
2. The start of the formal investigation and the possibility of becoming part in the performance.
3. Capture the suspect or suspects.
4. The decision on custody or released on bail of suspects.
5. Merit that was rated the summary or imputation of charges hearing.
6. The trial began.
7. Holding preparatory public hearings and trial and the possibility to participate.
8. Of the judgment handed down by the judge or magistrate.
9. The appeal to be made against the ruling.
10. The exhumation of remains or bodies that may correspond to a missing relative, identifying possible places of burial and the procedure in which the victims have to be involved to achieve the identification of the remains.
11. Of current measures for the protection of victims and witnesses and the mechanisms to access them.
12. Decisions on precautionary measures that fall on goods for repair.
13. Of other proceedings that affect the rights of victims. PARAGRAPH 1.
. Communications shall be in writing, electronically or by any suitable means for the victim, and the officer shall record or record them in his office. PARAGRAPH 2.
. The communication on the completion of judicial proceedings in which the victim can participate, must be made within a reasonable time, and in accordance with the respective process.
ARTICLE 37. HEARING AND DISCOVERY. The victim shall, whenever requested to be heard within the criminal proceedings, to call evidence and to provide the evidence that is in possession. Effective Jurisprudence
The competent authority may examine the victim to the extent strictly necessary to clarify the facts under investigation, with full respect for their rights, especially their dignity and moral integrity and in any case trying to use language and appropriate attitude to prevent their re-victimization. Effective Jurisprudence
ARTICLE 38. PRINCIPLES OF PROOF IN CASES OF SEXUAL VIOLENCE. In cases where crimes involving sexual violence against victims are investigated, the judge or magistrate shall apply the following rules:
1. Consent can not be inferred from any words or conduct of a victim where force, threat of force, coercion or taking advantage of a coercive environment undermined their ability to give voluntary and genuine consent;
2. Consent can not be inferred from any words or conduct of the victim when it is unable to give voluntary and genuine consent;
3. Consent can not be inferred from silence or lack of resistance of the victim to the alleged sexual violence;
4. Credibility, or predisposition to sexual availability of a victim or witness can not be inferred from the sexual nature of the prior or subsequent conduct of the victim or witness;
5. The judge or magistrate shall not admit evidence of the prior or subsequent sexual conduct of a victim or witness.
PARÁGRAFO. The Attorney General's Office, with the contributions of the Ombudsman, the Attorney General's Office, international agencies and organizations working in the field, create a protocol for the investigation of crimes against freedom, integrity and sexual education in which legal and psychosocial measures and issues such as capacity building of staff for research, treatment, care and assistance to victims contemplated during all stages of the procedure, and specific actions to the attention of women, children and adolescent victims.
ITEM 39. STATEMENT CLOSED. When for security reasons, or because the entity of the crime hinders the description of the facts in open court or when the presence of the accused generate changes in the mood of the victims, the judge or magistrate of the cause decree, ex officio or petition, which the statement is rendered in a closed chamber in the presence only of the prosecutor, defense, prosecution and the judge or magistrate himself. In this case, the victim should be informed that his statement will be recorded by audio or video.
TESTIMONY BY ARTICLE 40 audio or video. The judge or magistrate may allow a witness to give testimony orally or via audio or video, provided that this procedure will allow the witness to be questioned by the Prosecutor, the defense and the official knowledge, at the time of testifying.
The competent authority shall ensure that the place chosen to take the witness through audio or video, guarantee the accuracy, privacy, safety, physical and psychological well-being, dignity and privacy of the witness. The authority has the obligation to ensure security and the means to testify in the case of a child or adolescent.
PARÁGRAFO. In the case of children and adolescents victims, the judge or magistrate shall have the obligation to protect and ensure all necessary means to facilitate their participation in court proceedings.
ARTICLE 41. SPECIAL FORM OF TESTIMONY. The judge or magistrate may, either ex officio or upon request of the Prosecutor, Defense, prosecution or victim, special measures to facilitate the testimony of the victim, a child, a teenager, an older adult or victim of sexual violence. The competent official shall take into account the integrity of the people and taking into account the violation of the privacy of a witness or victim may pose a security risk, diligently monitor the form of questioning to avoid any harassment or intimidation, paying particular attention to the case of victims of crimes of sexual violence. Effective Jurisprudence
ARTICLE 42. PRESENCE OF SKILLED PERSONNEL. When the judge or magistrate deems appropriate, on its own initiative or at the request of a party, it may order that the testimony of the victim is received accompanied by expert personnel in trauma, such as psychologists, social workers, psychiatrists or therapists situations, among others. The victim is also entitled to choose the sex of the person to which you want to make a statement. This rule applies especially in cases where the victim is a woman or elderly, or have been subjected to sexual violence, torture or other cruel, inhuman or degrading treatment and will be mandatory in cases where the victim is a child or or adolescent.
PARÁGRAFO. When victims are not expressed in Castilian, the presence of translators and interpreters will be available to collect his statement, submit applications and forward the actions in which they have to intervene.
ARTICLE 43. LEGAL ASSISTANCE. The Ombudsman will provide counseling services, legal advice and victims that covered by this law representation. To this end, the Ombudsman made the adjustments or modifications necessary to adapt its institutional capacity in fulfilling this mandate. PARAGRAPH 1.
. The Ombudsman, within a period of six (6) months, reorganize the organizational structure of the Ombudsman in order to ensure compliance with the duties assigned by this law. PARAGRAPH 2.
. The Ombudsman's services provide legal representation to victims who request it through the National System of Public Defender. To do so, appoint legal representatives to be devoted exclusively to legal aid for victims through a special program to meet that task, incorporating criteria of differential advice and assistance component for women victims.
ARTICLE 44. EXPENSE OF THE VICTIM IN CONNECTION WITH THE JUDICIAL PROCEEDINGS. Victims for which will check summarily and expeditiously the lack of availability of resources to cover the costs of legal proceedings, will be subject to measures to facilitate legitimate access to criminal proceedings. Preferably
and attention to monetary and nonmonetary resources available, may be subjected to measures such as access to audiences through teleconferencing or any other technological means allowing the respective procedural steps forward.
. When victims voluntarily decide to remedy guardianship or go to the administrative justice, to seek redress or compensation for the damage suffered, parents or lawyers representing them in the process may not, under any circumstances, receive, agree or agree fees that exceed two (2) monthly statutory minimum wages in the case of tutela, or twenty (25) monthly legal minimum wages, in the case of proceedings before the administrative jurisdiction, including the amount it is agreed as a success fee, contingency fee or percentage of the amount declared in favor of the victim by the judicial authority. This will apply regardless of whether it is one or more parents and whether a process meets several victims. Effective Jurisprudence
. The provisions of this Article shall be regulated by the national government, in a term not exceeding one (1) year from the effective date of this law.
Matches ARTICLE 45.
agencies with permanent functions of the Judicial Police go from its current plant staff, a specialized group of its agents to develop work of identification of goods and assets that have hidden the people accused of undermining the rights of victims covered by this law.
ARTICLE 46. When the material evidence, physical evidence, legally obtained information, or other evidence gathered during a criminal investigation by damage to the rights of victims covered by this law, can reasonably infer that the structure or illegal organization to which belonged the investigation received financial support, on a voluntary basis, of a natural or legal domestic or foreign, with branch or subsidiary in the country, or public servants placed in the public service to promote actions of violations of international human rights or breaches of international humanitarian law by the respective illegal structure, the prosecutor must refer the case and the evidence gathered to an ordinary prosecutor, in accordance with the Code of Criminal Procedure and the rules governing the matter.
In the event that during the procedure under Law 975 of 2005, the Tax Justice and Peace notice any of the circumstances mentioned in the preceding paragraph, it shall refer the case and the evidence gathered to an ordinary prosecutor, in accordance with the Code of Criminal Procedure and the rules governing the matter.
In the event that the criminal liability of the natural person or representative of the national or foreign legal person with affiliate or subsidiary in the country or the public servant is declared, as the case, the trial judge, upon request prosecutor or the public prosecutor immediately opened an incident special repair, that will emerge in accordance with the provisions of the Code of Criminal Procedure, without the victims are identified, howsoever the judge or magistrate of knowledge will take into consideration the rights damage caused by the armed group outside the law which has been supported. Effective Jurisprudence
In deciding the incident repair the judge or magistrate knowledge order, by way of reparation for victims, the same sum of money to the convicted or sentenced contributed or contributed to the financing of the illegal structure or organization, or cash equivalent if the support was in kind, or the amount the judge or magistrate deems appropriate if it is not determined in the process, be consigned to Reparation Fund for the Victims of Violence. Effective Jurisprudence
The judge or magistrate may also order the convicted implementing measures of satisfaction, which must be made directly by this. This provision will have no effect on the subsidiary State liability which shall be governed by the provisions of Article 10 of this Law. PARAGRAPH 1.
. When in the course of criminal proceedings the presiding judge warns reasons to believe that illegal structure or organization to which belonged the defendant received financial support, on a voluntary basis, of a natural or legal domestic or foreign, with affiliate or subsidiary in the national territory shall refer the case and the evidence gathered to an ordinary prosecutor, in accordance with the Code of Criminal Procedure and the rules governing the matter.
. The legal person whose legal representative is convicted under the terms of this Article shall attend as third incident liable to reparation in the terms of the Code of Criminal Procedure. Likewise, the judge or magistrate may also order the execution of measures of satisfaction for victims by legal persons referred to in this article. PARAGRAPH 3.
. In any case, under the terms of this Article, the judge or magistrate may order a legal person, as reparation, consign to the Fund for Reparations to Victims of violence more than once for the same acts. Effective Jurisprudence