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.
Seeks to declare, by court order, that
the person alleging right of ownership
did not actually have it.
 SOURCE (Art. 34 Const.). Flawed.
 Constitutional protection cannot be
claimed.
 USE. (ART. 58 Const.).
 Noncompliance 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
 EX OFICIO
 Attorney General directly, or designee.
 Prosecutors assigned to Specialized Circuit
Criminal Courts
 Prosecutors assigned to Special
Elimination Units
VERDICT
SPECIALIZED CRIMINAL CIRCUIT
JUDGES
Location of property
 At same location -
Local Spec. Judges
 Different Districts -
Greater number of
Specialized Judges
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
INITIAL STAGE
 No time limit
 Gather evidence that will lead to a verdict
 Principle of integration  Inhibitory
 Control legality
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.
START OF THE PROCEEDING
 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
PROVISIONAL MEASURES
 Article 681 C.P.C.
 Embargo
 Forfeiture
 Suspension of disposal right
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
clear title when acquiring property in
illegal manner, which gives rise to
rights and therefore does not qualify
protection under the constitution.
of
an
no
for
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.
EQUIVALENT PROPERTY
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
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
DECISIONS
TO DATE
ASSETS INVOLVED
14443
VALIDLY OBTAINED PROPERTY
7132
INVALIDLY OBTAINED PROPERTY
1245
ASSETS WITH VERDICTS
3521
ASSETS RETURNED BY VERDICTS
676
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