I. Domestic Legislation
The Colombia Constitution promulgated in 1991 replaced the Constitution of 1886.
In Colombia legislation banking secrecy and the right to privacy are not considered valid arguments to reject banking information requests issued by judges of the republic or anti money laundering authorities, within the limits established by article 15 of the Constitution and 105 of Decree 663 of 1993, also known as Organic Statute of the Financial System (EOSF).
Colombian financial entities are subject to supervision by the Financial Super Intendance, which counts with a Delegate Superintendent for Money Laundering, who supervises the administration and prevention of money laundering, terrorism financing and the compliance of the preventive norms of all entities under supervision.
The Super Intendance also has a Department of Direction and Prevention of Money Laundering which executes functions of judicial police under the functional direction of the General Prosecutors Office.
Decree 663 of 1991 reformed the Organic Statute of the Financial System establishes a series of obligations and controls for the supervised entities to avoid their operations to be used as instruments of money laundering, such as immediate reporting suspicious transactions to the UIAF.
The financial entities are also obliged to establish preventive mechanisms, such as the Integral System for the Prevention of Money Laundering (SIPLA) to detect unusual and suspicious transactions, which uses parameters such as the difference between the client’s funds and the amount of the transaction, or designating a compliance officer.
The regulation of the financial entities’ activities includes the control and registry of individual cash transactions of amounts equivalent or superior to 10.000 pesos, US $5.000 or its equivalent in other currencies, and of US $500 for exchange bureaus. Multiple transactions of 50.000.000 pesos and US $50.000 (or their equivalent in other currencies), and of US $1500 for exchange bureaus are also forbidden.
The system is based on a the basis of the know your customer policy, comparison of operations, detection of suspicious transactions, reporting to the UIAF or the Super Intendancy and a final report to the Judicial Police or Public Prosecutor’s Office.
Colombia is not part of the Financial Actions Task Force (GAFI), however it has implemented their 40 recommendations. The country is part of the Egmont Group and of the GAFISUD (South American Financial Action Task Force).
The UIAF centralizes, systematizes and analyzes information about operations and users of the financial system, according to articles 102 to 107 of the Organic Statute of the Financial System. The entities overviewed are compelled to provide all information concerning money laundering and detected in their sector, included that of their clients whose fund management does not correspond to their source of incomes and those transactions which reasonably raise suspicions of being originated in a criminal activity.
Once the information is obtained, the UAIF communicates it to the pertinent authorities and the entities with competence to forfeit these assets. The UAIF is authorized to reach cooperation agreements with foreign FIUs.
The UAIF is also authorized to coordinate with foreign authorities in order to trace assets overseas. It can also obtain records and information from any public office. Law 526 compels authorities to not disclose their contact with the UAIF to persons under suspicion.
Law 190 of 1995 established requirements to work in the Public Sector created the obligation to present asset declaration forms and introduced reforms to the Criminal Code in regards to traffic in influence and other offences.
The Colombia Criminal Code (law 599 of 24 July 2000) established an ample range of corruption offences in articles 397 to 434, such as public embezzlement, bribery, undue signing of contracts, traffic in influence, illicit enrichment, abuse of power, most of which are punished with imprisonment, fines and in habilitation. Article 433 of the Criminal Code establishes transnational bribery, which is normally referred to as bribery of foreign public officials.
The offense of Money Laundering is established on article 323 of the Criminal Code. It aims to protect economic and social order. It requires intent. It criminalizes the acquisition, keeping, investing, transporting, transforming and administering of assets with a direct or indirect origin on illicit activities. It sanctions the actions aimed to giving these assets an appearance of legality or the concealing of their true origin. It depends on the previous commission of a predicate offence. It allows for self laundering. This activity is punishable even if the predicate offence was perpetrated overseas.
II. Bilateral Agreements
1. Extradition
The possibility to extradite is established on article 35 of the Constitution, after legislative act no. 01 of 16 December 1997, in accordance with international treaties. The extradition of Colombians requires dual criminality. It is limited by political offences and by the date of the legislative act mentioned supra. To offer or allow extradition is a prerogative of the executive branch, and it requires the approval of the Supreme Court. The Court’s refusal is binding to the executive, however its approval is not (articles 18 Criminal Code and 490 Criminal Procedures Code).
- Mutual Legal Assistance Agreement in Criminal Matters between the Republic of Colombia and the Republic of Argentina, law 492 of 1999.
- Mutual Legal Assistance Agreement in Criminal Matters between the Government of Colombia and the Republic of Brazil, Brazil, 7 November 1997, law 512 of 1999.
- Memorandum of Understanding about Money Laundering between Colombia and other Countries in South America, 08 December 2000.
- Memorandum of Understanding about Mutual Legal Assistance between the Republic of Colombia and the Republic of Chile, 17 June 1981, law 95 de 1987.
- Memorandum of Understanding about Mutual Legal Assistance between the Republic of Colombia and the Republic of Chile, 10 June 1994.
- Mutual Legal Assistance Agreement in Criminal Matters between the Government of Colombia and the Republic of Ecuador, 18 December 1986, law 519 of 1999.
- Memorandum of Understanding on Mutual Legal Assistance between the Republic of Colombia and the Republic of El Salvador, 11 Mai 1992.
- Extradition Treaty between the Republic of Colombia and the United States of America, 14 September 1979.
- Suplementary memorandum to establish mechanisms to execute the memorando of understanding between the Government of Colombia and the Government of the United States of America, in relation with the transfer of seized assets, 27 October 1998.
- Cooperation Agreement in Mutual Legal Assistance between the Government of Colombia and the Government of Mexico, suscribed 7 December 1998, law 569 de 2000.
- Mutual Legal Assistance Agreement in Criminal Matters between the Republic of Colombia and the Government of Panamá, 19 November 1993, law 450 de 1998.
- Mutual Legal Assistance Agreement in Criminal Matters between the Republic of Colombia and the Government of Paraguay, 31 July 1997, law 479 of 1998.
- Mutual Legal Assistance Agreement in Criminal Matters between the Republic of Colombia and the government of Paraguay, 31 July 1997, law 517 de 1999.
- Mutual Legal Assistance Agreement in Criminal Matters between the Republic of Colombia and the Government of Perú, 12 July 1994, law 479 of 1998.
- Mutual Legal Assistance Agreement in Criminal Matters between the Republic of Colombia and the Government of Venezuela, 20 February 1998, law 567 of 2000.
- Agreement on Judicial Assistance in Criminal Matters between the Republic of Colombia and the Government of Peru, 26 October 1998.
III. Multilateral Agreements
Adopted by law 1017 of 2006. The text of the Convention is available in Spanish.
The convention establishes that State Parties must adopt legislative measures to allow the identification, localization and confiscation of properties, instrumentalities and proceeds of crime. The convention also encourages the adoption of measures to allow competent authorities to access banking records. On article 6 it establishes a range of conducts about which requires legislative measures. It establishes the sharing of information between states about proceeds or instrumentalities of crime even without a previous request. It also encourages the adoption of preemptive measures. The convention refers to the requirements to send requests, the mechanisms to execute them, and the reasons for refusal or delay.
Adopted by law 412 of 6 November 1997. The text of the Convention is available in Spanish.
In 1996, the OAS member states adopted the Inter American Convention against Corruption. The Convention, which was the first international legal instrument to address this issue, specifically includes in its rationale the recognition of the international importance of corruption and the need for an instrument to promote and facilitate inter-country cooperation to combat it. Consequently, with that motivation, it set forth two goals:
- To promote and strengthen the development by each of the States Parties, of the mechanisms needed to prevent, detect, punish, and eradicate corruption.
- To promote, facilitate, and regulate cooperation among the States Parties to ensure the effectiveness of measures and actions to prevent, detect, punish, and eradicate corruption in the performance of public functions and acts of corruption.
The Convention identifies acts of corruption to which it applies and creates binding obligations under international law. It provides for institutional development, requirements for the criminalization of specified acts of corruption and articles on extradition, seizure of assets, mutual legal assistance, and technical assistance where acts of corruption occur or have effect in one of the Parties. It also highlights the importance of preventative measures.”
This convention briefly refers to asset tracing and forfeiture of property, extradition and mutual legal assistance.
In regards to extradition, article XIII can only be applied in accordance with the offenses established in the convention, but always subject to the conditions provided for by the law of the Requested State or by applicable extradition treaties.
The convention also provides that the State Parties must afford one another the widest measure of mutual assistance to investigate or prosecute acts of corruption, to obtain evidence or to take any necessary action to facilitate legal proceedings and measures.
According to article XV, part of this international cooperation implies that the State Parties must provide each other assistance in identifying, tracing, freezing, seizure and forfeiture of property or proceeds obtained, derived from or used in the commission of offenses established in the convention. A state party must also provide for the transference of the property or proceeds requested by another state when enforcing a forfeiture judgment. Bank secrecy cannot be used as a basis for a refusal to provide the requested assistance.
Adopted by law 636 of 4 January 2001. The Convention is available in Spanish.
This convention contains provisions on assets, the proceeds and instrumentalities of crime.
approved by law 970 of 2005. Not yet ratified.
UNCAC establishes that mutual legal assistance can be used, apart from the traditional purposes, for the recovery of assets, in accordance with chapter V of the convention. Asset recovery is in fact one of the key principles of this instrument. On article 54, specifically, it refers to the mechanisms for recovery of property through international cooperation in confiscation. The competent authorities of a requested State Party must be able to give effect to an order of confiscation issued by a court of another state party or to order the confiscation itself. This is done through mutual legal assistance requests or letter rogatories.
The convention establishes the need for a central authority to be set up in every country. However, once the request reaches the central authority it is normally handed to a prosecutor for execution. The prosecutor will send the correspondent requests to the judge with the objective of obtaining the pertinent orders. This would be the prosecutor’s first role in enforcing foreign judgments in their national jurisdictions.
The mutual legal assistance request is subject to a series of formalities, according to article 15 of UNCAC. It must clearly establish the identity of the authority making the request and the subject matter and nature of the investigation. It should also contain a summary of the relevant facts and a description of the assistance sought. It must also mention the identity of the people involved. Finally, it should establish the purpose for which the information will be used. The letter of request must be sent in a language acceptable to the authorities of the requested party. The lack of any of these requirements is reason enough to refuse assistance.
approved by law 800 of 2003.
As criminals themselves have started to operate regionally and even more spread out around the globe, national jurisdictions must understand the need to cooperate and work together in order to prevent becoming a hiding place for ill gotten profits as well as to be able to trace and retrieve moneys that have been maliciously stolen from them. This can only be achieved through international legal assistance, which is strongly emphasized by the UNTOC.
On article 18 this convention enumerates a wide range of examples of information that may be accessed through mutual legal assistance (MLA). The catalog is practically unlimited. Through MLA it is possible to collect documentary evidence; statements of persons (which, if are reflected on police reports could be later incorporated in trial even in the most accusatory of systems); effect service of judicial documents; execute searches, seizures and freezing of assets; examination of objects and sites; obtain expert evaluations; or, as UNTOC itself words it, “any other type of assistance that is not contrary to the domestic law of the requested State Party”.
Furthermore, it establishes the need to create a central authority to process all the MLAs received from State Parties. It is important for the requesting parties to keep in mind that the MLA must be submitted “in a language acceptable to the requesting State Party”, which should normally be one of the official languages of the concerned country. The document must always identify the authority making the request; the nature of the investigation; a brief summary of all the relevant facts; a detail of the assistance sought; the identity, location and nationality of any person concerned and the purpose for which the evidence is required. The lack of any of these formalities allows the requested party to refuse rendering help.
