LAW 679 OF 2001
Through which a statute is issued to prevent and counteract exploitation, pornography and sexual tourism with minors, in development of article 44 of the Constitution.
The Congress of the Republic
DECREES:
Article 1. Purpose. The purpose of this law is to establish protective measures against exploitation, pornography, sexual tourism and other forms of sexual abuse of minors, by establishing preventive and punitive standards, and issuing other provisions in development of article 44 of the Constitution.
Article 2. Definition. For the purposes of this law, a minor is understood to be a person who has not reached the age of eighteen.
Article 3. Scope of application. This law shall apply to natural and legal persons of Colombian nationality, or foreigners domiciled in the country, whose activity or corporate purpose is directly or indirectly related to the marketing of goods and services through global information networks, providers of tourist services referred to in article 62 of Law 300 of 1996 and other natural or legal persons of Colombian nationality, or foreigners domiciled in the country, who may generate or promote national or international tourism.
Natural persons who, having their domicile abroad, carry out, on their own or on behalf of a company, the activities referred to in the first paragraph of this article, shall also be subject to this law, provided that they enter Colombian territory.
Likewise, by virtue of the international cooperation provided for in article 13, the National Government shall incorporate the content of this law into the international treaties and agreements it enters into with other countries, so that its application may be extended to foreign natural persons or legal entities, domiciled abroad, whose corporate purpose is the same as that referred to in the first paragraph of this article.
CHAPTER II
On the use of global information networks in relation to minors
Article 4. Commission of experts. Within one month of this law becoming effective, the Colombian Institute for Family Welfare will form a Commission made up of legal and technical experts, and experts in global information and telecommunications networks, with the purpose of preparing a catalogue of abusive acts in the use and exploitation of such networks in relation to minors. The Commission will propose technical initiatives such as systems for detecting, filtering, classifying, eliminating and blocking content harmful to minors on global networks, which will be transmitted to the national Government for the purpose of dictating measures in development of this law.
The members of the Commission will be officials from the existing staff of public entities whose function is the protection of minors and the area of communications, and their designation will be the responsibility of the legal representative of the same. In any case, the Director of the Colombian Institute of Family Welfare, the Ombudsman, an expert in computer crimes from the DAS, the Attorney General of the Nation will be part of the Commission, and the UNICEF delegate for Colombia will be invited to its meetings.
The Commission referred to in this article will submit a written report to the National Government within four months following its formation, in which the conclusions of its study will be recorded, as well as the proposed recommendations.
Paragraph. The Commission of Experts referred to in this article will cease to function permanently, once the report for which it will be formed has been submitted. However, the National Government may convene it whenever it deems it necessary for the full fulfillment of the purposes provided for in this law.
Article 5. Report of the Commission. Based on the report referred to in the previous article, the national Government, with the support of the Telecommunications Regulatory Commission, will adopt administrative and technical measures aimed at preventing access by minors to any type of pornographic information, and to prevent the use of global information networks for the purposes of child sexual exploitation or the offering of commercial services that imply sexual abuse of minors.
Regulations on administrative and technical measures will be issued by the National Government within six (6) months following the date of validity of this law.
CORRESPONDING TEXT
Article 6. Self-regulation systems. The National Government, through the Ministry of Communications, will promote and encourage the adoption of self-regulation systems and effective codes of conduct in the management and use of global information networks. These systems and codes will be developed with the participation of representative bodies of providers and users of global information network services.
For these purposes, the Ministry of Communications will call upon the subjects referred to in the third article of this law, so that they may formulate in writing their proposals for self-regulation and codes of conduct.
The codes of conduct will be agreed upon within the year following the validity of this law and a copy will be sent to the General Secretariats of the Senate and the Chamber.
Article 7. Prohibitions. Providers or servers, administrators and users of global information networks may not:
1. Host on their own site images, texts, documents or audiovisual files that directly or indirectly imply sexual activities with minors.
2. Host on their own site pornographic material, especially in the form of images or videos, when there are indications that the people photographed or filmed are minors.
3. Host on their own site links to telematic sites that contain or distribute pornographic material related to minors.
Article 8. Duties. Without prejudice to the obligation to report established by law for all residents in Colombia, providers, administrators and users of global information networks must:
1. Report to the competent authorities any criminal act against minors of which they are aware, including the dissemination of pornographic material associated with minors.
2. Combat with all technical means at their disposal the dissemination of pornographic material with minors.
3. Refrain from using global information networks to disseminate illegal material involving minors.
4. Establish technical blocking mechanisms through which users can protect themselves or their children from illegal, offensive or undesirable material in relation to minors.
Article 9. Information points. The Ministry of Communications will create within the month following the issuance of this law, a direct telephone line that will serve as an information point for providers and users of global information networks about the legal implications of their use in relation to this law.
Likewise, within the term indicated above, it will create an electronic page on the global networks, to which users can refer to file complaints against pornography events involving minors and to indicate the electronic pages in which sexual services with minors or pornography with minors are offered, as well as to indicate the authors or those responsible for such pages.
In the event that the Ministry of Communications receives complaints by telephone or electronic means that may be criminal in nature, they must be immediately forwarded to the competent authorities, in order for them to carry out the corresponding investigation.
Article 10. Administrative sanctions. The Ministry of Communications will take action based on the complaints made, and will sanction the providers or servers, administrators and responsible users who operate from Colombian territory, successively as follows:
1. Fines of up to 100 current legal minimum wages.
2. Cancellation or suspension of the corresponding electronic page.
For the imposition of these sanctions, the procedure established in the Administrative Litigation Code will be applied with observance of due process and criteria of adequacy, proportionality and recidivism.
PREVIOUS LEGISLATION
Article 11. Procedural legal standing. Any natural or legal person shall be obliged to report to the competent authorities any act that violates the provisions of this law. Parents' associations and other non-governmental organizations whose purpose is the protection of children and the rights of minors shall have legal standing to report and act as a party in administrative and judicial proceedings aimed at the suppression of sexual abuse of minors.
The Ombudsman's Office and municipal ombudsmen shall provide all the legal advice that parents' associations require to exercise the procedural rights referred to in this article. Failure to comply with this obligation constitutes a very serious disciplinary offense.
Article 12. Awareness-raising measures. Authorities at the different territorial levels and the Colombian Institute for Family Welfare shall implement actions to raise public awareness about the problem of prostitution, pornography and sexual abuse of minors. The National Government, through the Ministry of Education, will supervise the measures that are dictated in this regard by the departmental, district and municipal authorities.
Paragraph 1. Public awareness measures are understood as any program, campaign or plan aimed at informing by any means about the problem of prostitution, pornography with minors and sexual abuse of minors; about their physical and psychological causes and effects and about the responsibility of the State and society in their prevention.
Paragraph 2. The Office of the Attorney General of the Nation, through the Delegate for the Defense of the Family and Minors and the Judicial Attorneys, will carry out the respective monitoring and control.
CHAPTER IV
Measures of international scope
Article 13. Actions of international cooperation. The National Government will take the necessary measures to defend the fundamental rights of children and increase the effectiveness of the provisions of this law, through international cooperation actions in accordance with the global nature of the problem of sexual exploitation, pornography and tourism associated with sexual practices with minors. In this regard, the President of the Republic may adopt the following measures:
1. He will suggest the inclusion of standards to prevent and counteract the sexual abuse of minors in the Tourism Cooperation Agreements signed with other countries.
2. He will take the initiative for the adoption of international agreements that allow the exchange of information on persons or companies that offer services related to the sexual exploitation of minors, pornography with minors and tourism associated with sexual practices with minors, through the use of global information networks or any other means of communication.
3. He will encourage the execution of agreements on mutual assistance and judicial cooperation in the matter of evidence on crimes associated with sexual exploitation, pornography with minors and tourism associated with sexual practices with minors.
4. Promote global meetings of UNICEF in Colombia to address the problem of sexual abuse of minors.
5. Encourage the exchange of information, statistics and the unification of global legislation against the sexual exploitation of minors.
6. It will offer or grant the extradition of foreign citizens who are accused of conduct associated with sexual exploitation and pornography with minors and tourism associated with sexual practices with minors. For such purposes, the existence of a public treaty will not be necessary, nor will it be required that the act that motivates it be punished with a certain minimum penalty of deprivation of liberty, although in other respects the extradition must be implemented in accordance with the Code of Criminal Procedure.
7. It will take concrete and immediate measures aimed at the repatriation of minors who have left the country illegally or for the purposes of sexual exploitation.
Article 14. Denial and cancellation of visas. No visa of any kind may be granted to enter Colombian territory to foreigners against whom preliminary investigations, criminal or police proceedings have been initiated in any State, or fines have been imposed, or a security measure has been issued, or a final conviction has been issued for crimes of sexual exploitation or against the freedom, modesty and sexual education of minors.
Likewise, the visa already granted will be cancelled at any time, without prejudice to the corresponding criminal action that the Colombian State must take ex officio to ensure the proper sanction of such punishable acts.
For the same reasons, deportation, expulsion and denial of admission to Colombian territory will proceed.
These measures will also be adopted in relation to those who have been accused of promoting, facilitating or concealing such crimes, in any State.
Article 15. Information system on sexual crimes against minors. For the prevention of sexual crimes against minors and the necessary control over those who commit, promote or facilitate them, the Ministry of Justice and Law, the Administrative Department of Security, DAS, the Colombian Institute of Family Welfare and the Attorney General's Office will develop an information system in which a complete database is available on crimes against freedom, modesty and sexual education committed against minors, their perpetrators, accomplices, pimps, both convicted and accused.
The Administrative Department of Security and the Attorney General's Office will promote the formation of an international information service on persons accused or convicted of crimes against freedom, modesty and sexual education against minors. For this purpose, the participation of international police agencies will be sought.
CHAPTER V
Measures to prevent and counteract sexual tourism
Article 16. Tourism promotion programs. The providers of tourist services listed in article 62 of Law 300 of 1996, and other natural or legal persons who may generate national or international tourism, shall refrain from offering, expressly or surreptitiously, plans for the sexual exploitation of minors in tourist promotion programs. They shall also adopt measures to prevent their employees, employees or intermediaries from offering tourist guidance or sexual contact with minors.
Paragraph. The Ministry of Economic Development shall require the providers of tourist services to adhere to commitments or codes of conduct, in order to protect minors from all forms of sexual exploitation and violence originating from national or foreign tourists.
The Codes or commitments of conduct shall be filed with the Ministry of Economic Development within a maximum period of six (6) months from the effective date of this law, and shall be widely disseminated.
Article 17. Duty to warn. Hotel or lodging establishments will include a clause in the lodging contracts they enter into after the validity of this law, informing about the legal consequences of the sexual exploitation and abuse of minors in the country.
Travel and tourism agencies will include information to the same effect in their tourism advertising.
National or foreign airlines will inform their users on international trips to Colombia about the existence of legislation against the sexual exploitation of minors.
Article 18. Inspection and surveillance. The Ministry of Development will inspect and control the activities of tourist promotion with the purpose of preventing and counteracting prostitution and sexual abuse of minors in the sector and will sanction the providers of tourist services involved.
Article 19. Infractions. In addition to the infractions provided for in article 71 of Law 300 of 1996, providers of tourist services may be subject to sanctions:
1. Using advertising that expressly or surreptitiously suggests the provision of sexual tourism services with minors.
2. Providing information to tourists, directly or through their employees, about places where sexual services are coordinated or provided with minors.
3. Driving tourists to establishments or places where prostitution of minors is practiced.
4. Driving minors, directly or through their employees, to places where tourists are staying, even if they are places located on the high seas, for the purposes of prostitution of minors.
5. Renting or using vehicles on tourist routes for the purposes of prostitution or sexual abuse of minors.
6. Allowing minors to enter hotels or places of lodging and accommodation, bars, similar businesses and other tourist establishments for the purposes of prostitution or sexual abuse of minors.
Article 20. Sanctions. The Ministry of Economic Development will impose the following sanctions, in accordance with the procedure established for this purpose in Law 300 of 1996:
1. Fines of up to three hundred (300) current legal minimum monthly wages, which will be allocated to the Tourism Promotion Fund for the purposes of this law.
2. Suspension of registration in the National Tourism Registry for up to ninety (90) calendar days.
3. Cancellation of registration in the National Tourism Registry, which will imply the prohibition of exercising tourism activity for five (5) years from the sanction.
The Ministry of Economic Development may delegate this surveillance and control function to the territorial entities. This delegation, however, does not exclude the responsibility of the delegator for the actions or omissions of the delegates.
Paragraph. Natural or legal persons who have been sanctioned for violating the provisions of this law may not be beneficiaries of the Certificate of Tourist Development contemplated in article 48 of Law 383 of 1997 and Decree 1053 of 1998.
Article 21. Tourist Promotion Fund. In addition to the functions assigned to the Tourist Promotion Fund created by article 42 of Law 300 of 1996, this fund will have the purpose of financing the execution of prevention policies and campaigns for the eradication of tourism associated with sexual practices with minors, which will be drawn up by the Ministry of Economic Development in coordination with the Colombian Institute of Family Welfare.
A percentage of the resources of the Tourism Promotion Fund from the budget allocation that the National Government allocates annually and the total amount of the fines that the Ministry of Development imposes on tourism service providers, as established in this law and in numeral 2 of article 72 of Law 300 of 1996, will be allocated to this purpose. The national Government will regulate the matter.
The Director of the Colombian Institute of Family Welfare will be invited to the meetings of the Steering Committee of the Fund, whenever the allocation of the resources referred to in the previous paragraph is discussed.
CORRESPONDING TEXT
Article 22. Tax on adult videos. Commercial establishments, when renting X-rated adult video films, will pay a tax of five percent (5%) on the value of each rented video, to be used to finance plans and programs to prevent and combat sexual exploitation and pornography with minors.
Article 23. Departure tax. Nationals and foreigners, whether or not resident in Colombia, who leave the country by air, will pay the amount corresponding to one United States dollar, or its equivalent in Colombian pesos, at the time of purchase of the air ticket. This collection will be the responsibility of the ICBF, and its destination will be to finance plans and programs to prevent and combat sexual exploitation and pornography with minors.
The national Government will regulate the matter.
CORRESPONDING TEXT
PREVIOUS LEGISLATION
Article 24. Fund against the Sexual Exploitation of Minors. The special account called Fund against the sexual exploitation of minors, attached to the Colombian Institute of Family Welfare, is hereby created.
The main objective of the Fund is to provide income for social investment in order to guarantee the financing of plans and programs for the prevention and fight against sexual exploitation and pornography with minors and, more specifically, for the following purposes: construction of homes or children's shelters, programs for assistance, guidance, rehabilitation and physical and psychological recovery of minors who have been the object of sexual exploitation; financing of repatriation programs for Colombians who have been the object of sexual exploitation, and financing of dissemination mechanisms for the prevention of criminal actions in the area of trafficking of women and children.
The specific sources of the resources destined to the Fund will be the following:
1. The items assigned to it in the national budget.
2. The resources from internal and external credit.
3. The donations it receives.
4. The resources from national or international cooperation.
5. Other funds obtained by any means.
Paragraph 1. The Board of Directors of the ICBF will define each year what the specific expenses will be charged to the fund, taking into account the investment conditions established in this law. There will always be an appropriation within the budget assigned to the ICBF to promote special education, which presents new vocational alternatives that guide them towards decent work, for minors who are the object of exploitation or sexual practices. A specific appropriation will also be included to investigate the causes and solutions of the issue that is the object of this law.
The conclusions of these investigations will serve to define the programs and projects that will be executed in the following fiscal years.
Paragraph 2. The person in charge of spending will be the same person in charge of the ICBF.
Paragraph 3. The financial administration of the fund will be done through a fiduciary entity, supervised by the Banking Superintendence. The ICBF will carry out the bidding process and the execution of the fiduciary contract.
Paragraph 4. The Government will regulate the functions and responsibilities of the ICBF Board of Directors and the expenditure manager in relation to the Fund, while the internal and fiscal control must be carried out in accordance with the constitutional and legal regulations in force.
Paragraph 5. The funds referred to in articles 22 and 23 of this law will be specifically allocated to the purposes provided for in this statute.
CORRESPONDING TEXT
CHAPTER VI
Police measures
Article 25. Police surveillance and control. The National Police shall have, in addition to the functions assigned constitutionally and legally, the following:
1. Carry out surveillance and control work on hotel or lodging establishments, tourist attractions and other places that, in the opinion of the ICBF, the Ministry of Economic Development and the National Police itself, deserve special surveillance due to evidence of sexual exploitation of minors.
2. Support administrative investigations carried out by the Ministry of Economic Development in compliance with this law.
3. Channel complaints that are filed in violation of the provisions of this law.
4. Inspect and immobilize vehicles in tourist areas when there are serious indications that they are used for the purposes of sexual exploitation of minors. These vehicles may be seized and auctioned off for the payment of compensation caused by the crime whose commission is established within the respective criminal process.
Article 26. The National Police will periodically inspect brothels in order to prevent and counter sexual exploitation, pornography and all kinds of sexual practices with minors. The owner or manager of an establishment who opposes this will be ordered to close it for fifteen (15) business days, without prejudice to the inspection being carried out and any criminal action that may be taken.
The definitive and immediate closure of the establishment is appropriate when cases of sexual acts involving minors are discovered or when any type of pornographic material is found involving minors.
The temporary and definitive closure will be the responsibility of the inspectors in the first instance and of the mayors in the second instance, following the procedure of the respective Police Code or, failing that, of the Administrative Litigation Code, without prejudice to any criminal and pecuniary sanctions that may be applicable.
Article 27. Telephone help line. The National Police, within a period of no more than fifteen (15) days from the effective date of this law, at all territorial levels, will designate an exclusive help line for minors who are subject to mistreatment or sexual abuse and to receive reports of acts of sexual abuse with minors, or of the generation, commercialization or distribution of materials such as texts, documents, files or audiovisuals with pornographic content of minors.
Article 28. Training for police personnel. The National Police will periodically dictate training courses and programs, in order to update police personnel on current legislation regarding sexual exploitation of minors, sale and trafficking of children, pornography with minors and care for minors with totally unsatisfied basic needs. The Inspector General of the National Police and the National Commissioner for the Police will carry out the necessary controls to ensure compliance with this function, without prejudice to the surveillance that corresponds to the control agencies.
Paragraph. The Colombian Institute for Family Welfare and other public entities, at all territorial levels, whose functions are related to the protection of minors, will contribute to the training of members of the National Police.
Article 29. Registry of missing minors. The National Police will keep a registry of missing minors, in relation to whom it will establish priorities for search and return to their families. Children who have been missing for more than three months must be included in international reports on missing persons at Interpol headquarters.
Article 30. Customs surveillance. The importation of any type of pornographic material in which minors participate or in which acts of sexual abuse with minors are exhibited is prohibited. The customs authorities will dictate appropriate measures in order to intercept this type of illegal importation, without prejudice to the functions that the National Police must fulfill.
Article 31. Security plans and strategies. Governors and mayors shall include measures to prevent and eradicate the sexual exploitation of minors, pornography and tourism associated with sexual practices with minors in the comprehensive security plans and strategies referred to in Article 20 of Law 62 of 1993 and/or regulations that modify it. Failure to comply with this duty shall be subject to disciplinary sanctions as a serious offense.
Article 32. National Police Commission. Two (2) representatives of Colombian non-governmental organizations, whose social purpose includes the protection and defense of minors, shall have a seat on the National Police and Citizen Participation Commission.
CHAPTER VII
Penal measures
Article 33. Article 303 of the Penal Code shall be added with the following paragraph: "If the agent carries out any of the conduct described in this article with persons under fourteen years of age by virtual means, using global information networks, he shall incur the corresponding penalties reduced by one third."
Transitional paragraph. As soon as Law 599 of 2000 comes into force, this article will be numbered 209.
It affects the validity of:
Article 34. A new article shall be added to the Penal Code, with the number 312A, with the following wording:
Article 312A. Use or facilitation of means of communication to offer sexual services to minors. Anyone who uses or facilitates traditional mail, global information networks, or any other means of communication to obtain sexual contact with minors under eighteen (18) years of age, or to offer sexual services to them, will incur a prison sentence of five (5) to ten (10) years, and a fine of fifty (50) to one hundred (100) current legal monthly minimum wages.
The penalties indicated in the previous paragraph will be increased by up to half (1/2) when the conduct is carried out with minors under twelve (12) years of age.
Transitional paragraph. As soon as Law 599 of 2000 comes into force, this article will have the number 219A.
Article 35. A new article is added to the Penal Code, with the number 312B, with the following tenor:
Article 312B. Failure to report. Anyone who, by reason of his or her job, position, or activity, has knowledge of the use of minors to carry out any of the conducts provided for in this chapter and fails to inform the competent administrative or judicial authorities about such facts, having the legal duty to do so, will incur a fine of ten (10) to fifty (50) current legal monthly minimum wages.
If the conduct is carried out by a public servant, the loss of employment will also be imposed.
Transitional paragraph. As soon as Law 599 of 2000 comes into force, this article will have the number 219B.
Affects the validity
CHAPTER VIII
Final provisions
Article 36. Statistical research. In order to know the social, individual and family risk factors that promote the sexual exploitation of minors, as well as the consequences of abuse, the National Administrative Department of Statistics, DANE, will carry out a statistical investigation that will be updated periodically and that will collect at least the following information:
1. Quantification of sexually exploited minors, by sex and age.
2. Places or areas of greatest incidence.
3. Quantification of clientele by nationality, social class(es).
4. Forms of remuneration.
5. Forms of sexual exploitation.
6. Occurrence of tourism associated with sexual practices with minors.
7. Level of education of sexually exploited minors.
The governors and district and municipal mayors, as well as the indigenous authorities, will provide the National Administrative Department of Statistics, DANE, with all necessary collaboration, at the departmental, district and municipal level, for the realization of the investigation.
Natural or legal persons, of any kind or nature, domiciled or resident in the national territory, are obliged to provide the National Administrative Department of Statistics, DANE, with the data requested in the development of their research.
The data provided to the National Administrative Department of Statistics, DANE, in the development of the research may not be disclosed to the public or to official entities or organizations, or to public authorities, but only in numerical summaries, which do not make it possible to deduce from them any information of an individual nature that could be used for discrimination purposes.
The National Administrative Department of Statistics, DANE, may impose fines of between one (1) and fifty (50) current legal monthly minimum wages, as a sanction to natural or legal persons or public entities referred to in this article and that fail to comply with the provisions of this rule or hinder the conduct of the investigation, after the brief and summary procedure that guarantees the right of defense.
This information will serve as a basis for the authorities to prevent the sexual exploitation of minors, and to protect and assist child victims in order to facilitate their recovery and reintegration into society.
CORRESPONDING TEXT
Article 37. Special Commission. The boards of directors of the Senate of the Republic and the House of Representatives shall appoint a special commission made up of five (5) senators and five (5) Representatives, including the authors and speakers of this law, in order to advise and collaborate with the National Government in the development of this law, as well as to evaluate its compliance by the authorities. This Commission may recommend to the boards of directors the legal modifications it deems pertinent.
Article 38. Budgetary operations. The National Government is authorized to adopt the measures and carry out the budgetary operations necessary for the full execution of this law.
Article 39. Validity. This law shall be effective from its publication and repeals all regulations that are contrary to it.
The President of the honorable Senate of the Republic,