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 1Different purpose from criminal case. 1Seeks to declare, by court order, that the person alleging right of ownership did not actually have it.

î SOURCE (Art. 34 Const.). Flawed. îConstitutional protection cannot be claimed. î USE. (ART. 58 Const.). îNoncompliance with property’s social function

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.

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

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

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

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

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

VERDICT uAt same location -Local Spec. Judges uDifferent Districts -Greater number of Specialized Judges SPECIALIZED CRIMINAL CIRCUIT JUDGES uLocation of property

STAGES OF THE PROCEEDING  INITIAL STAGE (PRETRIAL)  START( TRIAL)  JUDGE(VERDICT)

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

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

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

ENCUMBRANCE OF PROPERTY  EXCEPTIONAL  Affected third parties may establish their rights in this stage

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

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

Facts on which action based Identification of property Applicable cause Direct or circumstantial evidence Provisional measures

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

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

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

 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

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

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.

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.

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

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

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

ASSETS INVOLVED IN EXTINCTION PROCEEDINGS AS OF MAY 31, 2004 DECISIONSTO DATE ASSETS INVOLVED14443 VALIDLY OBTAINED PROPERTY7132 INVALIDLY OBTAINED PROPERTY1245 ASSETS WITH VERDICTS3521 ASSETS RETURNED BY VERDICTS676 ESTIMATED VALUE OF ASSETS IN U.S. DOLLARS $2,483,000,000

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