What to expect if arrested or implicated on criminal charges in Colombia
Facing criminal charges in Colombia requires immediate, deliberate action. The Colombian penal system which is regulated by the Law 906 of 2004, also known as the Criminal Procedure Code grants specific constitutional protections to foreign citizens, but asserting these rights effectively depends on understanding critical procedural deadlines from the moment of first contact with law enforcement or the Attorney General’s Office (Fiscalía General de la Nación).
Although the Colombian Constitution states that all foreigners will be treated equally under Colombian law, by our own experience, in reality this could be interpreted as a myth.
Immediate Protocol Upon Arrest or Detention
If you are detained by police or investigators in Colombia, the law establishes strict procedural guarantees under Article 29 of the Colombian Constitution.
- Assert the 36-Hour Constitutional Clock: Following an arrest (captura), the Fiscalía has a non-negotiable limit of 36 hours to present you before a Constitutional Judge (Juez de Control de Garantías) for a proper detention legality hearing (audiencia de legalización de captura). If this deadline is breached by even a fraction of time, the detention becomes unlawful and immediate release must be granted. However, this does not mean that the process ends. The person is released from custody but is brought up on the charges that motivated the arrest.
- Exercise Your Right to an Official Interpreter: If Spanish is not your native language, you have an absolute right under Article 8 of the American Convention on Human Rights and the Criminal Procedure Code Law 906 to be assisted by a certified interpreter. Do not consent to proceed with informal interviews or sign any documents in Spanish without an interpreter and qualified defense counsel present.
- Exercise the Right to Remain Silent: Article 33 of the Colombian Constitution protects you against self-incrimination. Anything you say to law enforcement officers during transport or preliminary booking can be logged and introduced into the investigative file. Politely state: “Deseo guardar silencio hasta hablar con mi abogado defensor.” (I wish to remain silent until speaking with my defense attorney.) Which should be the first thing you do when informed of your detention.
- Request a Phone Call to Communicate your arrest: You should call someone before you are taken to a police station. In this situation it is recommended to contact an attorney and then he or she can communicate with your family members. However, you can also contact a family member first and then have them find an attorney for you. We recommend contacting an English Speaking Criminal Defense Attorney first because time is of the essence in these types of situations.
- Request Consular Notification: Under Article 36 of the Vienna Convention on Consular Relations, you have the right to have your consulate or embassy notified of your detention. Note that while consulates can monitor your well-being and sometimes provide a list of local attorneys, embassy personnel cannot provide legal representation or pay your legal fees.
The Three Critical Preliminary Hearings (Audiencias Preliminares)
Most foreign nationals when arrested in Colombia are initially taken to a police station until they are handed over to the Fiscalia (Prosecutor´s Office). After this they are usually taken to some preliminary hearings which are done in one session before a Juez de Control de Garantías (Judge). Understanding this sequence is vital:
| Hearing Stage | Objective | Strategic Defense Focus |
|---|---|---|
| 1. Legalización de Captura | Verifies that search, seizure, and arrest procedures adhered strictly to constitutional standards. | Challenging procedural flaws, physical rights violations, or breach of the 36-hour limit. |
| 2. Imputación de Cargos | The prosecutor formally notifies you of the criminal charges and facts under investigation. | Evaluating whether to accept or reject charges; analyzing sentence reduction incentives (up to 50% discount at this stage), not applicable in all cases. |
| 3. Medida de Aseguramiento | The judge determines whether you should be remanded to pre-trial detention, granted house arrest, or released under supervision. | Presenting evidence of local roots (arraigo), lack of flight risk, and proposing non-custodial alternatives. |
3. Addressing the Pre-Trial Detention Risk for Foreigners
The primary challenge foreign nationals face during preliminary hearings is the prosecutor’s request for pre-trial prison detention (medida de aseguramiento en centro carcelario). Prosecutors frequently argue that foreign citizens pose an inherent flight risk due to international mobility.
To defeat a pre-trial detention petition, a defense team must immediately compile and present proof of local family, business or social links (arraigo) or provide alternatives to pretrial detention:
- Valid visa status or legal residency documentation in Colombia.
- Proof of real estate leases, property ownership, or registered business operations (Cámara de Comercio).
- Family ties within Colombia (spousal or child relationships documented via official registries).
- Active enrollment in local educational institutions or employment contracts.
- There are many other strategies known and used by experienced defense lawyers.
Retaining Specialized Criminal Defense Counsel
Navigating complex criminal litigation in Colombia requires a defense practitioner with deep technical expertise in evidentiary standards, cross-examination, and constitutional guarantees. This is of the upmost importance when dealing with an unforeseen arrest or detention. Time is short and critical in these types of situations.
What to verify when retaining legal representation in Colombia:
- Specialization in Criminal Procedural Law: General practitioners or corporate firms without dedicated trial litigators are ill-equipped for fast-paced audiencias preliminares. You should only hire an experienced criminal defense lawyer for these types of situations.
- Bilingual Technical Capability: Your legal strategy must be communicated to you clearly in English, but argued persuasively in formal Spanish legal nomenclature before Colombian judges. An English speaking criminal defense attorney is recommended as to have the ability to communicate clearly without details getting lost in translations.
- Absolute Ethical Compliance: Avoid individuals who claim to possess “informal contacts” or guarantee specific outcomes through backchannels. In Colombia, criminal litigation is strictly recorded on audio and video, and outcomes depend entirely on technical argumentation and evidentiary refutation.
Professional Legal Assistance
At our Law firm criminal defense is led directly by our highly experienced bilingual criminal defense attorney Heriberto Rivera, who specializes in Criminal Evidentiary Law, is an author of doctrinal analyses and books on constitutional guarantees (El mito de la presunción de inocencia en Delitos Sexuales y Violencia Intrafamiliar en Colombia), and contributor to Ámbito Jurídico, the leading law journal in Colombia. We provide immediate, high complexity case defense and representation, as well as, legal advice for foreign nationals facing criminal inquiries, extradition proceedings, and complex litigation across Colombia.
For urgent legal assistance, contact our confidential international defense line at Tel. +57 300 563 2424 or browse our website for more information LawyersInColombia.com.