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ELIMINATION OF OWNERSHIP IN PROCEEDINGS Law 793 of 2002

ELIMINATION OF OWNERSHIP IN PROCEEDINGS Law 793 of 2002. PROCEEDINGS. PROCEDURAL ASSUMPTIONS Art. 228 of the Constitution. Purpose of proceeding : Give effect to substantive law. PURPOSE OF THE ELIMINATION PROCEEDING. Different purpose from criminal case.

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ELIMINATION OF OWNERSHIP IN PROCEEDINGS Law 793 of 2002

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  1. ELIMINATION OF OWNERSHIP IN PROCEEDINGS Law 793 of 2002

  2. PROCEEDINGS • PROCEDURAL ASSUMPTIONS Art. 228 of the Constitution. Purpose of proceeding:Give effect to substantive law

  3. PURPOSE OF THE ELIMINATION PROCEEDING • Different purpose from criminal case. • Seeks to declare, by court order, that the person alleging right of ownership did not actually have it.

  4. SOURCE (Art. 34 Const.).Flawed. • Constitutional protection cannot be claimed. • USE. (ART. 58 Const.). • Noncompliance with property’s social function

  5. THE PROCEEDING IS INTENDED TO ESTABLISH: • Existence of one of the causes in Article 2 of Law 793 of 2002 • Identification and location of property • Connection or link between one of the causes established in the law and the property.

  6. PROPERTY • Subject to financial appraisal • Of which ownership may be claimed • Yield and return

  7. Principal real rights:ownership, inheritance, trust property, easement, use, residence, etc. Ancillary real rights:mortgage, pawn, census, retention.

  8. LINKAGE • Owner of the asset. • Person involved in the illicit activity. • Source or destination of the assets.

  9. JURISDICTION • Nature of the parties, material, and asset. • Territorial • Functional

  10. INVESTIGATION • EX OFICIO • Attorney General directly, or designee. • Prosecutors assigned to Specialized Circuit Criminal Courts • Prosecutors assigned to Special Elimination Units

  11. VERDICT SPECIALIZED CRIMINAL CIRCUIT JUDGES • At same location - Local Spec. Judges • Different Districts - Greater number of Specialized Judges • Location of property

  12. STAGES OF THE PROCEEDING • INITIAL STAGE (PRETRIAL) • START ( TRIAL) • JUDGE (VERDICT)

  13. INITIAL STAGE • Efforts to identify property • Establish if one of the causes applies • Collect evidence to establish the State’s claim • Encumbrance of property

  14. No time limit Gather evidence that will lead to a verdict Principle of integration - Inhibitory Control legality INITIAL STAGE

  15. ENCUMBRANCE OF PROPERTY • EXCEPTIONAL • Act quickly and effectively against criminal organizations • Have evidence to substantiate the action.

  16. ENCUMBRANCE OF PROPERTY • EXCEPTIONAL • Affected third parties may establish their rights in this stage

  17. START OF THE PROCEEDING • Clear prerequisites • Break presumption of good faith • Particulars to substantiate the claim.

  18. START OF THE PROCEEDING • Trial Resolution (no remedy allowed). • Verdict c-740/03, partially inapplicable #1 art.13; therefore suits permitted

  19. START OF THE PROCEEDING • Facts on which action based • Identification of property • Applicable cause • Direct or circumstantial evidence • Provisional measures

  20. PROVISIONAL MEASURES • Embargo • Forfeiture • Suspension of disposal right • Article 681 C.P.C.

  21. PROCEEDING • Notification • Individual, only the start • State, all other decisions. Verdict, by Edict • Curador Ad litem • Owners who do not appear • Unknown

  22. Due process • Defense • Request convincing evidence to substantiate the defense. • Explain origin of assets through demonstrable legal activities

  23. Evidentiary period ( 30 days with no continuance). • Transfer for final statements (5 days). • Decision on validity of claim (public verdict c-740/03). • Validity - Judge • Not valid- Consultancy

  24. VERDICT • Declarative • Recognition of Rights • Damages • Curator’s honoraria • Equivalent property • FRISCO fund

  25. DECLARATIVE NATURE OF VERDICT Declares loss of ownership for want of clear title when acquiring property in an illegal manner, which gives rise to no rights and therefore does not qualify for protection under the constitution.

  26. Declares that due to deviation from, lack of attention to, or noncompliance with the obligations inherent in the social function of property, the illegal disposition violated the legal order.

  27. EQUIVALENT PROPERTY Vienna Convention. Art. 5. • Seizure of the product or assets with value equivalent to that of this product.

  28. EQUIVALENT PROPERTY Law 793 Art. 3 paragraph • Equivalent assets or property. • Locate or • Destroy

  29. GUARANTEES • Prove illicit origin. • Prove it is not protected by the causes. • Prove res judicata: • Concerning identity of : • Subjects. • Objects • Claim

  30. ASSETS INVOLVED IN EXTINCTION PROCEEDINGS AS OF MAY 31, 2004 ESTIMATED VALUE OF ASSETS IN U.S. DOLLARS $2,483,000,000

  31. MARIA CRISTINA CHIROLLA LOSADA CHIEF National Unit for the Elimination of the Right of Ownership and against Money Laundering

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