Key Benefits:
1688 OF 2013
(December 16)
Official Journal No. 49.006 of 16 December 2013
CONGRESS OF THE REPUBLIC
C-585-14 >
By means of which the "Treaty on the transfer of sentenced persons for the execution of criminal sentences between the Republic of Colombia and the United Mexican States", signed in Mexico City on 1 August, is approved 2011.
THE CONGRESS OF THE REPUBLIC
By means of which the "Treaty on the transfer of persons convicted for the execution of criminal sentences between the Republic of Colombia and the United Mexican States"approved, signed in Mexico City on 1 July August 2011.
(To be transcribed: A faithful and complete photocopy of the Spanish text of the precious international instrument is attached, taken from the original that is based on the file of the Internal Working Group of the Treaties of the Ministry of Foreign Affairs Colombia, which consists of ten (10) folios).
The Republic of Colombia and the United Mexican States (hereinafter the "Parties")
MOTIVATED by the desire to encourage the social reinsertion of those people who have been sentenced by some authority in the field of their competence to suffer a custodial sentence, and to provide them with it, the opportunity to meet their convictions in their home countries;
You have agreed to the following:
ARTICLE 1o. DEFINITIONS. C-585-14 >
For the purposes of this Treaty, it is considered:
a) "Moving State". To the State in which the sentence was imposed on the sentenced person who is liable to be or has been transferred;
b) "Receiver Status". The State to which the sentenced person may be or has been transferred to serve the sentence imposed on him;
c) "Sentenced". The person to whom a custodial sentence was imposed, and who is being held in a prison facility in the State of Transladante, in compliance with an order issued by a judicial authority in the field of his or her competence;
d) "Statement". The final judicial decision imposing on a person, as a penalty for the commission of a crime, the deprivation of liberty or restriction of the same, in a regime of probation, sentence of probation or other forms of monitoring;
For the purposes of this Treaty, a judicial decision shall be deemed to be final when there is no need to resolve or to bring an action or legal procedure that may change it;
e) "Condemn". The custodial or restrictive penalty for the execution of a criminal establishment, hospital, institution or supervision regime without detention in the State of transfer, which has been imposed by a judicial body of that Party, with a limited duration, on the basis of a crime;
f) "National" refers to:
I. In relation to the United Mexican States, any Mexican national who complies with the requirements stated in his legislation, to consider it as such;
II. In relation to Colombia, any national that complies with the requirements laid down in its legislation, for the same purpose.
ARTICLE 2o. GENERAL PRINCIPLES. C-585-14 >
1. In accordance with the provisions of this Treaty, the Parties undertake to provide each other with all the cooperation necessary for the fulfilment of this Treaty.
2. In accordance with the provisions of this Treaty, a person who has been sentenced on the territory of one of the Parties may be transferred to the territory of the other Party, in order to comply with the sentence imposed on him by judgment, it will be essential for the sentenced person to state in writing to the State that he wishes to be transferred in accordance with this Treaty.
3. In order to take the decision to authorize or deny a transfer request, it should be taken into consideration that this will contribute to its effective social reintegration, the seriousness of the crime and the possible linkage of the sentenced with the organized crime, their degree of participation or responsibility in the events that led to the conviction, their health status, criminal records, as well as the links they may have with the societies of each of the Parties.
ARTICLE 3o. CONDITIONS OF THE TRANSFER. C-585-14 >
1. The transfer of a sentenced person, in accordance with this Treaty, may only be carried out when he meets the following criteria:
(a) For the purposes of this Treaty, the sentenced person is a national of the State of the Receiver;
b) That at the time of filing the transfer request there is no trial, investigation, or any other legal proceedings against the sentenced by the Trasladante State;
c) That the judgment be duly executed and that the convicted person has served twelve (12) months of the sentence imposed or that the convicted person is in a serious health condition;
d) That at the time of receipt of the transfer request, the sentenced person still has to serve at least twelve (12) months of his conviction. In exceptional cases, the Parties may agree to the transfer of a sentence, even if they have failed to comply with less than twelve (12) months of their conviction;
e) That the sentenced himself grant his written consent to the benefit of this Treaty or, if any of the Parties deem it necessary, on the basis of age, the physical or mental state of the sentenced person, be made on his behalf or by its legal representative;
g) That the person sentenced has fulfilled or guaranteed the payment, to the satisfaction of the State of the Trasladante, of the fines, procedural costs, civil reparation and pecuniary convictions of all kinds that run to his office in accordance with the provisions of the conviction sentence;
h) that the acts or omissions which led to the imposition of the sentence, constitute criminal offences under the law applicable in the State of the Receiver and as a consequence, are punishable in the event of being committed in their territory; that this condition is not interpreted as requiring that the offences established in the laws of both Parties be identical in aspects that do not affect the nature or nature of the offence;
i) That the sentenced person has not been convicted of any political crime or in terms of the military legislation of the Transformer State;
j) That the transferring State and the receiving State expressly consent to the transfer, which shall be in harmony with the internal legislation of both Parties;
k) That the sanction to be enforced is determined and not a death penalty, or any other than is provided for by the national legislation of the Parties.
2. This Treaty shall not apply in the case of sentenced persons who are linked to or are related to organised crime.
ARTICLE 4o. IMPLEMENTING AUTHORITIES. C-585-14 >
1. For the implementation of this Treaty, the United Mexican States designates as implementing authority the Secretariat of Public Security, through its Administrative Organ Desconcentrated Prevention and Social Readaptation, or who does its own times.
2. For the implementation of this Treaty, the Republic of Colombia designates the Ministry of the Interior and Justice as implementing authority, or who does its own times, in which case it shall be notified through diplomatic channels.
ARTICLE 5o. PROCESS FOR THE TRANSFER. C-585-14 >
1. Each Party shall report on the content of this Treaty to any sentenced person who is susceptible to its application;
2. The Moving State must provide the Receiver State with the following information:
a) Name, date and place of birth of the sentenced;
(b) Nature, duration and date of commencement and termination of the sentence imposed on the sentenced;
c) Review of the facts that motivated the conviction;
d) Certified copy of the statement and information about the legislation in which it was based;
e) Certified copy of the birth certificate, passport, or any other document that reliably proves the nationality of the sentenced person;
f) Request for transfer in which the sentenced man expresses his will to avail himself of this Treaty;
g) A medical report on the general health status of the sentenced person, as well as information on the treatment received in seclusion and, where appropriate, recommendations on the additional treatment to be received in the receiving State, together with a social report when deemed appropriate;
h) Report that includes the portion of the conviction that has been served, in addition to information regarding prior detentions, referral of the conviction or any other relevant factor in the execution of the sentence;
i) That the sentenced person has complied with all the pecuniary obligations imposed on him, guarantees the payment of the same to the satisfaction of the Trasladante State, or in his case, is declared his prescription by some legal authority Empowered to do so;
j) Any additional information at the request of the Receiver State.
3. After having analyzed the information provided by the Trasladante State, and if the Receiver State is willing to consent to the transfer of the sentenced person, it must provide the first of the following:
(a) Statement indicating that the sentenced person is a national of that State;
b) A copy of the legislation in which the acts or omissions that have led to the conviction are punishable if they have been committed in their territory;
c) Report on the legal consequences for the sentenced person of the application to his/her case of the legislation of the State Receiver, once the transfer has been made;
d) Any additional information at the request of the Traslading State.
4. The transfer of a sentenced person shall be verified in the territory of the transferring State, unless the Parties decide otherwise.
ARTICLE 6o. REQUESTS AND RESPONSES. C-585-14 >
1. Each transfer of sentenced Mexican nationals will be initiated by a written request submitted by the Embassy of the United Mexican States in Colombia to the Ministry of Foreign Affairs.
2 Each transfer of sentenced Colombian nationals shall be initiated by a written request submitted by the Colombian Embassy in the United Mexican States to the Secretariat of Foreign Affairs.
3. If the transferring State considers the request for the transfer of the sentenced national and expresses its consent, it shall inform the receiving State of its approval, as soon as possible, so that once the internal arrangements have been completed it can be make the move.
4. The surrender of the sentenced person by the authorities of the State of the State of the Recipient shall be made in the place that both Parties agree. The receiving State shall be responsible for the custody of the sentenced national, from the moment he is handed over to him, and the minutes shall be recorded.
5. Where either Party does not approve the transfer of a sentenced person, it shall notify its decision without delay to the other Party by expressing the cause or reason for the refusal.
6. Denied the authorisation of the shipment, the State of the Receiver may not make a new application, but the Trasladante State will be able to review its decision at the request of the State of the Receiver when this is alleged exceptional circumstances.
ARTICLE 7o. CONSENT AND VERIFICATION. C-585-14 >
1. The Moving State shall ensure that the person granting his consent to the transfer, in accordance with Article 3e) or of this Treaty, does so voluntarily and with full knowledge of the legal consequences that this entails. The procedure for granting such consent shall be governed by the legislation of the Trasladante State.
2. The State of Transfer shall provide the receiving State with the opportunity to verify, through its Diplomatic Representation, that the consent has been granted in accordance with the provisions of this Treaty.
ARTICLE 8o. TRANSFER EFFECT FOR THE RECEIVING STATE. C-585-14 >
1. To assume the custody of the sentenced person by the State Receiver, will have the effect of suspending the execution of the sentence in the Transladante State.
2. The State of Transfer shall not be able to require the execution of the sentence, if the Receiving State considers that compliance with the sentence has been completed.
ARTICLE 9o. PROCEDURE FOR THE EXECUTION OF THE SENTENCE. C-585-14 >
1. The execution of the sentence of the sentenced person shall be complied with in accordance with the rules of the State of the Receiver. In no case may it be modified by its nature or by its duration, the custodial sentence issued by the State of transfer.
2. No conviction shall be executed by the State Receiver in such a way as to prolong the duration of the deprivation of liberty beyond the term imposed by the judgment of the Court of the Transcending State.
3. For the purposes of this Article, the competent authority of the recipient State may issue surveillance measures requested by the Trasladante State. Similarly, at the request of the Trasladante State, it shall report on the manner in which the surveillance of the sentenced national will be carried out and shall communicate the non-compliance by the sentenced person with the obligations that he has assumed.
ARTICLE 10. PARDON, AMNESTY, COMMUTATION OR MODIFICATION OF THE PENALTY. C-585-14 >
The Moving State shall retain exclusive jurisdiction over the sentence imposed and any other procedure that provides for the review or modification of the sentences handed down by its judicial bodies.
The State of Transfer will also retain the exclusive right to pardon or grant amnesty, to commute or to modify the sentence. The Receiving State upon receiving notice of any such decision shall promptly take the appropriate measures in accordance with its legislation on the matter.
ARTICLE 11. INFORMATION REGARDING THE EXECUTION OF THE CONVICTION. C-585-14 >
The receiving State will provide the State with information regarding the application of the conviction:
a) When the conviction has been met;
b) When the sentenced person has been evaded from custody, before serving time, or
c) When the Traslading State requests a special report.
ARTICLE 12. TRANSIT. C-585-14 >
If either Party agrees on the transfer of sentenced persons to a third State, the other Party shall cooperate with regard to the transit through its territory of the sentenced persons transferred in accordance with those provisions, except in the case of a sentenced person who is one of his/her nationals in which case, he/she may refuse to grant transit to the Party intending to carry out such transfer.
ARTICLE 13. EXPENSES. C-585-14 >
The receiving State shall bear the costs incurred for the implementation of this Treaty, except for the charges made exclusively in the territory of the Trasladante State. However, the Receiving State may seek to recover from the sentenced or some other source, the total or part of the expenses related to the transfer.
ARTICLE 14. TEMPORARY APPLICATION. C-585-14 >
This Treaty shall apply for any application submitted after its entry into force, even if the acts or omissions that resulted in the imposition of the sentence have occurred prior to that date.
ARTICLE 15. ADOLESCENTS. C-585-14 >
This Treaty may be extended, upon agreement of the Parties, to juvenile offenders and minor offenders, in accordance with the applicable law of each Party, and the definition granted to them.
ARTICLE 16. DISPUTE RESOLUTION. C-585-14 >
Any dispute arising out of the interpretation of this Treaty, as well as its application, will be resolved through direct negotiations between the Parties and/or the executing Authorities and, in the event of failure to reach a solution on the dispute, they may agree on a specific mechanism for their solution, such as the establishment of expert commissions or arbitration.
ARTICLE 17. FINAL PROVISIONS. C-585-14 >
1. This Treaty shall enter into force thirty (30) days after the receipt of the last notification in which the Parties communicate, through diplomatic channels, compliance with the internal legal and constitutional requirements required for this purpose. and will have indefinite validity.
2. Either Party may at any time propose amendments to this Treaty. Any modification agreed by the Parties shall enter into force thirty (30) days after the exchange of Notes, following the conclusion of the respective internal procedures of the Parties.
3. Either Party may terminate this Treaty at any time by written notification to the other Party by diplomatic means, in which case its effects shall cease to be one hundred and eighty (180) days after the date of receipt of the relevant notification. Transfer requests submitted prior to the date of the notification shall be considered in accordance with the provisions of this Treaty.
4. In the event of termination, this Treaty shall continue to apply to the extent that it relates to the execution of convictions of sentenced men transferred in accordance with this Treaty.
In faith of which, the undersigned, duly authorized to this effect by their respective Government, have signed this Treaty, in Mexico City, on the first of August of two thousand eleven, in two original copies in Spanish, both equally authentic.
BY THE REPUBLIC OF COLOMBIA,
The Foreign Minister,
MARIA ANGELA HOLGUIN HANG.
BY THE U.S. MEXICANS,
The Foreign Secretary,
PATRICIA ESPINOSA CANTELLANO.
THE UNDERSIGNED COORDINATOR OF THE INTERNAL TREATY WORKING GROUP OF THE INTERNATIONAL LEGAL AFFAIRS DIRECTORATE OF THE MINISTRY OF FOREIGN AFFAIRS
CERTIFIES:
That the reproduction of the text above is a faithful and complete copy of the "Treaty on the Transfer of Sentenced Persons for the Execution of Criminal Sentences between the Republic of Colombia and the United Mexican States," signed in Mexico City on 1 August 2011.
Dada in Bogotá, D. C., at thirteen (13) days of the month of April two thousand twelve (2012).
The Coordinated Internal Working Group of Treaties, Directorate of International Legal Affairs,
ALEJANDRA VALENCIA GARTNER.
EXPLANATORY STATEMENT
Honorable Senators and Representatives:
On behalf of the national government and in compliance with articles 150 numeral 16 and 189 numeral 2 and 224 of the Political Constitution of Colombia, we present to the honorable Congress of the Republic the bill by means of which the " Treaty on transfer of sentenced persons for the execution of criminal sentences between the Republic of Colombia and the United Mexican States ", signed in Mexico City on 1 August 2011.
I. General constitutional considerations
The Political Constitution of 1991 establishes as a social end of the State, among others, "to serve the community, to promote the general prosperity and to guarantee the effectiveness of the principles, rights and duties enshrined in the Constitution" (article 2or C. P.).
The scope of the principle of the rule of law in relation to the relationship between the authorities and the individual concerned is quite broad and is reinforced by the fundamental principles of human dignity, work, solidarity (article 1or C. P.) and equality (article 13 of the C. P.).
Solidarity reinforces in the Social State of Law the postulate according to which the State is at the service of the human being and not the contrary. This is how the actions of the State in the social sphere do not obey a charitable, compassionate or merely liberality attitude of the public authorities, but the constitutional duty to ensure the indispensable conditions for all the people can make full use of their freedom and enjoy their fundamental rights[1].
Additionally, the Colombian State is founded on respect for human dignity as a fundamental principle. According to this principle, public authorities cannot be indifferent to situations that affect the intrinsic value of human life, understood not as the right not to be physically eliminated but as the right to carry out human capacities and to bring about a meaningful existence and, in particular, to preserve family ties.
In accordance with these constitutional principles, the Colombian Government has considered it appropriate to subscribe with the Mexican Government, the Treaty on the transfer of sentenced persons for the execution of criminal sentences, as in fact made in Mexico City, on 1 August 2011.
On the other hand, our Code of Criminal Procedure (Law 906 of 2004) has in its article 1or that the interveners in the criminal proceedings will be treated with respect due to human dignity.
In this order of ideas, this Treaty is part of respect for national sovereignty, recognizes the principles of international law, due process, access to the administration of justice and the principles of the administrative function contained in the article 209 Superior.
II. Treaty objective
This Treaty seeks to strengthen cooperation between Colombia and the United Mexican States, through the recognition of the need to allow the transfer of Colombian or Mexican convicts by the commission of crimes in one and the other State to its country of origin, with a view to ensuring that it can comply with the security penalties or measures imposed. With this agreement, as stated in its preamble, it seeks to promote the rehabilitation and reintegration of those condemned to their social core of origin, in order to fulfill the sentence, within the framework of respect for their human rights.
III. Treaty Content
The "Treatythe Transfer of Sentenced Persons for the Execution of Criminal Sentences between the Republic of Colombia and the United Mexican States", in Mexico City on 1 August 2011, develops the following topics: definitions, general principles, transfer conditions, implementing authorities, procedure for transfer, requests and replies, consent and verification, effect of transfer for the State Receiver, procedure for the execution of the sentence, pardon, amnesty, commutation or modification of the sentence, information regarding the execution of the sentence, transit, expenses, temporary application, adolescents, dispute settlement and final provisions.
As to the general principles provided for in this Treaty, a person who has been sentenced in the territory of one of the parles may be transferred to the territory of the other, to comply with the sentence imposed by him sentence. This possibility has as its essential requirement that the sentenced person express in writing to the State the transfer of his will to be transferred in accordance with the provisions of this international agreement.
To take the decision to authorize or deny a transfer request, it must be taken into account that this contributes to the effective reinsertion of the sentenced person; the seriousness of the crime and the possible linkage of the sentenced person with the organized crime; its degree of participation or responsibility in the events that motivated the conviction; its state of health; its criminal record; and the links it may have with the societies of each of the States Parties.
This Treaty will not apply in case of sentenced persons who are linked or related to organized crime.
The transfer of the sentenced applicant shall be made prior to the completion of a procedure intended for this purpose and its commencement shall take place with the application and compliance with the requirements laid down in this Agreement. Among these requirements are: the obligation of the State to inform the recipient State of the name, date and place of birth of the sentenced person; nature, duration and date of commencement and end of the sentence imposed the sentenced; review of the facts that led to the conviction; request for a transfer in which the sentenced man expresses his will to benefit from this Treaty; a medical report on the general state of health of the sentenced; a report which include the part of the sentence that has been served together with the information regarding arrests prior to, remission of the sentence or any other relevant factor in the execution of the sentence; among others.
The sentence of the person sentenced to be transferred will be met in accordance with the rules of the State of the Receptor's prison regime. In any event, it may be modified by its nature or by its duration, the custodial sentence of the State of the transfer.
No conviction will be executed by the State Receiver in such a way that, it prolongs the duration of the deprivation of liberty beyond the term imposed by the judgment of the court of the Trasladante State.
The State of Transfer will retain exclusive jurisdiction over the sentence imposed and retain the exclusive right to pardon or grant amnesty, commute or modify the sentence. The receiving State shall provide the State with information concerning the application of the sentence.
The Receiving State shall bear the costs incurred for the implementation of this Treaty, except for the charges made exclusively in the territory of the Trasladante State. However, the Receiving State may seek to recover from the sentenced or some other source, the total or part of the expenses related to the transfer.
This Treaty may be extended, upon agreement between the Parties, to juvenile offenders and minor offenders, in accordance with the applicable law of each Party.
Finally, it should be noted that this Treaty will enter into force thirty (30) days after the receipt of the last notification in which the Parties communicate, through diplomatic channels, compliance with the legal and constitutional requirements. (a) the internal security of the Community;
From the above, it can be concluded that the scope and scope of its provisions do not transcend the limits of cooperation and assistance between sovereign states, respecting in any case the internal systems of the signers.
For the above considerations, the national government, through the Minister of Foreign Affairs and the Minister of Justice and Law, present to the honorable Congress of the Republic " Treaty on transfer of sentenced persons for the execution of criminal sentences between the Republic of Colombia and the United Mexican States ", signed in Mexico City on 1 August 2011.
Of the honorable Senators and Representatives,
The Foreign Minister,
MARIA ANGELA HOLGUIN HANG.
The Minister of Justice and Law,
RUTH STELLA CORREA PALACIO.
EXECUTIVE BRANCH OF PUBLIC POWER
PRESIDENCY OF THE REPUBLIC
Bogotá, D. C., May 2, 2012.
Authorized. Submit to the honorable Congress of the Republic for the constitutional effects.
(Fdo.) JUAN MANUEL SANTOS CALDERÓN
The Foreign Minister,
(Fdo.) Maria Angela Holguin Cuandllar.
DECRETA:
ARTICLE 1o. Approve the "Treaty on the Transfer of Convicted Persons for the Execution of Criminal Sentences between the Republic of Colombia and the United Mexican States" Mexico City on 1 August 2011.
ARTICLE 2o. In accordance with the provisions of Article 1 of Law 7ª of 1944, the " Treaty on the transfer of persons convicted for the execution of criminal sentences between the Republic of Colombia and the United Mexican States ", signed in Mexico City on 1 August 2011, which under Article 1or this law is approved, will force the Republic of Colombia from the date on which it is perfect the international link with respect to the same.
ARTICLE 3o. This law applies as of 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 Justice and Law.
The Foreign Minister,
MARIA ANGELA HOLGUIN HANG.
The Minister of Justice and Law,
RUTH STELLA CORREA PALACIO.
EXECUTIVE BRANCH OF PUBLIC POWER
PRESIDENCY OF THE REPUBLIC
Bogotá, D. C., May 2, 2012.
Authorized. Submit to the consideration of the honorable Congress of the Republic for the constitutional effects.
(Fdo.) JUAN MANUEL SANTOS CALDERÓN
The Foreign Minister,
(Fdo.) Maria Angela Holguin Cuellar.
DECRETA:
Article 1o. Approve the "Treaty on the Transfer of Condemned Persons for the Execution of Criminal Judgments between the Republic of Colombia and the United Mexican States", signed in Mexico City on 1 August 2011.
Article 2o. In accordance with the provisions of Article 1 of Law 7ª of 1944, the "Treaty on the Transfer of Persons Condemned for the Execution of Criminal Judgments between the Republic of Colombia and the United Mexican States", signed in the city of Mexico on August 1, 2011, which, by article 1or this law, is approved, will force the Colombian State from the date on which the international link with respect to it is perfected.
Article 3o. This law applies from the date of its publication.
The President of the honorable Senate of the Republic,
JOHN FERNANDO CHRIST BUSTS.
The Secretary General of the honorable Senate of the Republic,
GREGORIO ELJACH PACHECO.
The President of the honorable House of Representatives,
HERNAN PENAGOS GIRALDO.
The Secretary General of the honorable House of Representatives,
JORGE HUMBERTO MANTILLA SERRANO.
COLOMBIA-NATIONAL GOVERNMENT
Communicate and comply.
Execute, upon review of the Constitutional Court, pursuant to article 241-10 of the Political Constitution.
Dada en Bogotá, D. C., at 16 December 2013.
JUAN MANUEL SANTOS CALDERÓN
The Foreign Minister,
MARIA ANGELA HOLGUIN HANG.
The Minister of Justice and Law,
ALFONSO GOMEZ MENDEZ.
* * *
1. See in particular the judgment of the Constitutional Court T-533 of 1992.
