Status regarding Budapest ConventionStatus : Observer See legal profile
Invited to accede: 12 September 2013
The Ministry of National Defense of the Republic of Colombia has a National Cyber Security and Cyber Defense strategy whose main objectives are: (i) implement the appropriate institutions, (ii) promoting specialized training programs for publiic functionaries; (iii) strengthening legislation and international cooperation. The institutions that are currently responsible for protecting citizens from cybercrime and cyber threats are:
- The Emergency Security Response Team of Colombia (Colcert) in charge of the coordination of of cyber security and cyber defense nationwide;
- The Joint Cyber Command of the Armed Forces responsible for safeguarding national interests in cyberspace; and
- The Police Cyber Center in charge of prevention and research. It provides support of the investigation and prosecution of cybercrime. For such purpose, it has a command of Virtual Immediate Response (CAI Virtual) that receives complaints from citizens.
The Colombian Government has actively participated in the framework of the Inter-American Strategy to Combat Cybersecurity Threats of the Organization of American States (OAS). As part of the awareness actiivities on cybersecurity, the Colombian government and the Inter-American Committee against Terrorism (CICTE) of the OAS conducted a mock cyber attack in September of 2012, which aimed to strengthen the capacity of Colombai in the prevention, detection and mitigation of large-scale cyber attack.
The Colombian Government -through representatives of the Ministry of Foreign Affairs and the Ministry of Telecommunications- participated in the Regional Workshop on Cybercrime Legislation in Mexico City from March 31 to April 2, 2014 where the representative of the Ministry of Foreign Affairs reported the latest policies and legislative developments in combating cybercrime. She made emphasis on the need for Colombia to access the Budapest Convention since it is the most optimal and feasible option to combat cybercrime and to provide for the harmonization of the legislation among the countries in the region.
State of cybercrime legislation
Colombia does not have an independent or specific legislation to punish cybercrime. The legal framework to punish crimes committed through the use of technology and information systems is contained primarily in the Criminal Code and other laws nationwide. During the Regional Workshop on Cybercrime Legislation in Mexico City in April 2014, the representative of the Ministry of Telecommunications mentioned that the Colombian authorities are seeking to reform the current Criminal Code in order to address cybercrime in general.
The offenses related to the use of information and communication technologies that are sanctioned and punished under the substantive criminal law of Colombia are the following:
- Illegal access to an information systems protected or not with a security measure (Art. 269 A of the Criminal Code)
- Illegitimate obstruction of a computer system or telecommunications network (Art. 269 B of the Criminal Code)
- Interception of computer data from or within a computer system (Art. 269 C of the Criminal Code)
- Destruction, damage, deletion, alteration or suppression of computer data or information processing systems (Art. 269 D of the Criminal Code)
- Production, trafficking, procurement, distribution, sale, sent, introduction to or removal of malware within national territory (Art. 269 E of the Criminal Code)
- Obtaining, compiling, removing, offering, selling, exchanging, sending, buying, intercepting, disclosing, modifying or using personal codes, personal data contained in files, archives or databases for own’s benefit or for the benefit of a third party (Art. 269 F Criminal Cod
- Impersonation of websites to capture personal data (Art. 269 G of the Criminal Code)
- Aggravating circumstances when the conduct is committed through computer systems or networks or state or official communications pertianing to the domestic or foreign financial sector, among other aggravating circumstances (Art. 269 H of the Criminal Code)
- Theft through the manipulation of an information system or electronic or telematic system network and impersonating a user before established authentication and authorization systems (Art. 269 I of the Criminal Code)
- Unauthorized transfer of any assets to the detriment of a third party and to manufacture, introduce, possess or facilitate computer programs destined to the commission of a crime (Art. 269 J of the Criminal Code)
- Publication without the prior express permission of the copyright owner including computer programs or software (Art. 270 of the Criminal Code)
- Violation of copyright by any means including economic rights (Arts. 270, 271 and 272 of the Criminal Code)
- Unlawful access of communications (Art. 192 of the Criminal Code)
- Offering, selling or purchasing devices to intercept private communications of individuals (Arts. 193 of the Criminal Code)
- Unlawful acces of communications or official correspondence (Art. 196 of the Criminal Code)
- Unlawful use of communications networks, including for terrorist purposes (Art. 197 of the Criminal Code)
- Sabotage or damage to tools, databases, software, facilities and equipment (Art. 199 of the Criminal Code)
- Photographing, filming, recording, producing, disclosig, offering, selling, purchasing, possessing, carrying, storing, transmiting or displaying or sharing child pornography by any means for personal use, including feeding Internet databases with or without profit. (Art. 218 of the Criminal Code)
- Promotion of tourism activities that include the sexual exploitation and use of children. (Art. 219 of the Criminal Code)
- Use or facilitation of communications media to provide sexual activity with persons under the age of 18 , including the use of Internet, telephony or any othere communication medium (Art. 219-A of the Criminal Code)
- Failure to report illicit conduct provided under the Criminal Code when by virtue of someone’s position or activity has detailed knowledge of the use of minors and fails to inform the competent administrative or judicial authorities about such facts (Art. 219-B of the Criminal Code)
- Providing access or illegal use of telecommunications services with the intention to profit as well as accessing, leasing, selling or using the network or any of the telecommunications services without the corresponding authorization (Art. 257 of the Criminal Code)
- Prohibitions to providers, servers, administrators and users of global networks of hositing information and content related to child pornography (Arts. 7 and 8 Law 679 of August 4, 2001 through which a Statute is issued to prevent and counter the exploitation, pornography and sexual tourism with children)
- Interception of phone communications and other similar whose information may be of interest for the purposes of the investigation. (Art. 235 of the Code of Criminal Procedure)
- Search and seizure of computer systems and servers and physical storage media in order to enable computer forensic experts to discover, collect, analyze and preserve the information retrieved. (Art. 236 of the Code of Criminal Procedure)
- Legality of the hearings of the search and seizure, interception of communications or information retrieval left by browsing the Internet or other similar means (Art. 237 of the Code of Criminal Procedure)
- Selective search in databases by the judicial police that involves access to confidential information relating to a defendant (Art. 244 of the Code of Criminal Procedure)
- Powers of the Attorney General to order searches, seizures and interceptions of communications and to presente the Constitutional Judge (Juez de Garantias) the evidence collected for judicial review within 36 hours, as well as securing material evidence and evidence ensuring the physical chain of custody while waiting for his Judgement. (Art. 114 of the Code of Criminal Procedure)
- Procedures and methodology for conducting the chain of custody (Art. 254-266 of the Code of Criminal Procedure)
- Using data messages, EDI, internet, e-mail, telegram, telex, telefax or simllar means as material and physical evidence (Art. 275 g) of the Code of Criminal Procedure)
The protection of human rights and safeguards under the lesgilation of Colombia are the following:
- Due judicial process and non-retroactivity of criminal law (Art. 6., 10 of the Code of Criminal Procedure and Arts. 28, third paragraph, 29, 86 and 87 National Constitution of Colombia)
- Right to respect for freedom and right to apply for habeas corpus in cases of illegal deprivation of liberty (Art. 2 Code of Criminal Procedure and Art. 30 of the National Constitution of Colombia)
- Right to inviolability of the home (Art. 28 National Constitution of Colombia)
- Right to self-defense (Arts. 8 and 290 Code of Criminal Procedure)
- Rights of the accused parties (Art. 303 Code of Criminal Procedure)
- Victims' rights (Art. 11 Code of Criminal Procedure)
- Right to personal and family privacy, private life and to rectify the information of an individual collected in databases and records of public and private entities (Art. 14 Code of Criminal Procedure and Art. 15 of the National Constitution of Colombia)
- Inviolability of correspondence and of private communication forms, and interception and seizure of records through a judicial order (Art. 15 National Constitution of Colombia).
- The right to freedom of expression and to disseminate thoughts and opinions and to transmit and receive truthful and impartial information. (Art. 20 of the National Constitution of Colombia)
- Right to request extradition (Art. 35 of the National Constitution of Colombia)
Related laws and regulations
The following laws contain related provisions with offenses committed through computer systems and Internet, as previously mentioned in the sections on substantive and procedural law:
- Constitución Política de Colombia, http://www.secretariasenado.gov.co/index.php/leyes-y-antecedentes/constitucion-y-sus-reformas
- Código Penal Colombiano, http://perso.unifr.ch/derechopenal/assets/files/legislacion/l_20130808_01.pdf
- Código de Procedimiento Penal (Ley 906 del 31 de Agosto de 2004), http://www.secretariasenado.gov.co/senado/basedoc/ley_0906_2004.html
- Ley 679 de 4 de Agosto de 2001 por medio de la cual se expide un estatuto para prevenir y contrarrestar la explotación, la pornografía y el turismo sexual con menores, en desarrollo del artículo 44 de la Constitución, http://www.oas.org/juridico/spanish/cyb_col_ley_679_2001.pdf
There are four agencies responsible for countering cybercrime and promoting cybersecurity nationwide. (i) The Intersectoral Commission responsible for setting the strategic vision and the management of information; (ii) the Emergency Security Response Team of Colombia (Colcert) in charge of the coordination of cyber security and cyber defense nationwide; (iii) the Joint Cyber Command of the Armed Forces responsible for safeguarding national interests in cyberspace; and (iv) the Police Cyber Center in charge of facilitating support for the investigation and prosecution of cybercrime.
The Police Cyber Center is a subordinated office of the Direction of Criminal Investigations and Interpol responsible for developing strategies, programs, projects and other activities related to specialized attention of cybercrime and cybersecurity. Its activities include identifying and deterring child pornography and it also has working groups on information crime and data, a research group on terrorism and a computer forensics laboratory that provides information on threats to computer security.
The Emergency Security Response Team of Colombia (Colcert) is responsible for the coordinatinon of Cybersecurity and National Cyber Defence, which is framed within the activities of the Management Security and Defense Process of the National Ministry of Defence. Its main purpose is to coordinate the necessary measures for the protection of the national critical infrastructure of Colombia against cyber emergencies that threaten or compromise national security and defense actions. Its website facilitate computer security alerts, contains recommendations to submit complaints on cybercrime, as well as a section for reporting incidents on computer systems and Internet.
The Code of Criminal Procedure of Colombia contains a whole chapter on international cooperation that includes general principles, requests for judicial cooperation with foreign authorities, transfer of witnesses and experts, transnational crimes, powers to avoid undue delay and limitations on cooperation (Arts. 484 to 489 of the Code of Criminal Procedure of Colombia Law 906 of 31 August 2004)
Law 679 of 4 August 4 2001, establishes international cooperation actions in order to defend the fundamental rights of children and the problem of sexual exploitation, pornography and tourism associated with the abuse and exploitation of children (Arts. 13, 14 and 15 of Law 679 of 4 August 2001 enacting an statute to prevent and counter the exploitation, pornography and sexual tourism with children).
The Code of Criminal Procedure of Colombia contains a chapter that sets the rules for conducting the extradition of Colombian processed in other countries (Arts. 490 to 514 of the Code of Criminal Procedure of Colombia Law 906 of 31 August 2004)
Colombia is part of the Inter-American Convention on Extradition, of the Central American Extradition Agreement of 1924 and of the Treaty on Extradition of 1903, instruments that recognize and facilitate the criminal extradition of individuals with the great majority of Latin American countries. Colombia has also entered and ratified extradition treaties and conventions on international judicial cooperation in criminal matters with the following countries: Belgium, Brazil, Chile, Costa Rica, Cuba, Spain, France, Mexico, Nicaragua, Panama and Peru.
The official list of extradition treaties and conventions on international judicial cooperation in criminal matters entered and ratified by Colombia is available in the website of the Ministry of Foreign Affairs:
Competent authorities and channels
The competent authority to investigate crimes in Colombia is the Public Prosecutor (Ministerio Público) with the support of the Judicial Police. The powers and attributions of the Public Prosecutor are contained in Articles 109 to 112 of the Code of Criminal Procedure and its respective Internal Law. The powers, attributions and functions of the Judicial Police-which operates under the direction and control of the Public Prosecutor (Ministerio Público) and the Office of the Attorney General are contained in Articles 113 to 117 of the Code of Criminal Procedure.
The extradition of accused parties is conducted through the provisions of Article 35 of the National Constitution and the extradition provisions contained in Book V Chapter II of the Code of Criminal Procedure and the corresponding extradition treaty with the country which the accused is being processed.
The official authorities and channels to conduct an extradition in Colombia are the Attorney General's Office, the Ministry of Foreign Affairs, the Ministry of Justice and the Supreme Court of Justice pursuant to Articles 490 to 514 of the Code of Criminal Procedure.
The Supreme Court of Justice of Colombia has issued judgements and case law related to child pornography and interception of private communications. The national judgements and case law might be consulted in the website of the Supreme Court of Justce of Colombia in:
Sources and links
- Colombia’s National Cyber Security and Cyber Defence Policy http://www.oas.org/cyber/presentations/Presentaci%C3%B3n%20Ottawa%20Colombia.pdf
- Judicial Branch Republic of Colombia http://www.ramajudicial.gov.co/
- Attorney General's Office http://www.fiscalia.gov.co/colombia
- Ministry of Foreign Affairs http://www.cancilleria.gov.co/
- National Police of Colombia http://portal.policia.gov.co/
- Police Cyber Center http://www.ccp.gov.co
- Emergency Security Response Team of Colombia (Colcert) http://www.colcert.gov.co/
- Supreme Court of Justice http://www.cortesuprema.gov.co/