Detained without legal basis: what can be done in the next few hours
The call no one expects: a member of your family has been arrested. The first sensation is paralysis. The second, urgency with no direction. And every hour that passes in that uncertainty is another hour of detention that may be —or may not be— lawful.
In Colombia, not every arrest is legitimate. Article 30 of the Constitution establishes habeas corpus as the specific constitutional action protecting personal liberty against arrests that are unlawful, arbitrary, or prolonged beyond what the law allows. The judge must decide within 36 hours of filing. It is the highest-ranking mechanism for recovering the liberty of someone detained without sufficient legal basis.
What determines whether that mechanism works is the quality of the constitutional argument put to the judge. That is not a formality —it is the technical work that decides the outcome of the hearing.
What habeas corpus is, and why it is the highest-ranking constitutional mechanism
Habeas corpus is established in article 30 of the Constitution of Colombia and regulated by Law 1095 of 2006. It is not an ordinary appeal or a secondary procedural step: it is the constitutional action for direct and immediate protection of personal liberty.
It can be filed by anyone —not only the detainee, not only a lawyer— before any judge in the country, at any time, wherever the detainee is held. From filing, the judge has 36 hours to decide. A decision granting habeas corpus orders immediate release; compliance is mandatory.
What is not unlimited is the margin for error in the argument. A habeas corpus petition without solid constitutional grounding can be rejected at the hearing, and re-filing is restricted. The technical quality of the petition and of the representation at the hearing makes the difference.
When it lies: the three grounds that trigger the action
Law 1095 of 2006 establishes three specific grounds on which habeas corpus lies in Colombia:
- Unlawful arrest: the deprivation of liberty was carried out without the statutory conditions —without arrest in flagrante and without a judicial order, or without any of the situations in article 302 of the Criminal Procedure Code.
- Arbitrary arrest: the detention, although formally begun with some legal basis, infringes fundamental rights by the way it was carried out —arbitrary incommunicado detention, unjustified transfer, conditions that infringe dignity.
- Unlawful prolongation: the person is held longer than the law allows. In flagrante: 36 hours for the legalisation hearing. With a detention measure: the time limits of the measure imposed. Where those limits are exceeded without a valid judicial basis, habeas corpus lies.
Analysis of the specific case determines which ground applies and how to argue it before the habeas corpus judge. That initial assessment is part of the work the firm does from first contact.
The 36-hour clock: why every hour counts differently
From the moment habeas corpus is filed, the judge has 36 hours to decide. That limit is strict —it cannot be extended. But there is something the limit does not say explicitly: the time taken to prepare a rigorous constitutional argument also matters.
A habeas corpus petition filed in the first hours of a detention, with solid technical argument, is in a different procedural position from one filed three days later. The proof of unlawfulness may be clearer, the conditions of detention more documentable, and the impact on the detained person’s work, family and health more controllable.
Urgency here is not a communications strategy. It is the procedural reality of habeas corpus: acting in the first hour is not worth the same as acting tomorrow.
What decides whether the judge grants or refuses habeas corpus
The habeas corpus judge does not assess the guilt or innocence of the person arrested. The judge assesses exclusively whether the deprivation of liberty meets the statutory and constitutional conditions. That is the hearing —and that is the technical field on which liberty, or continued detention, is decided.
Habeas corpus petitions that are refused share the same weakness: argument insufficient against the concrete conditions of the ground invoked. It is not enough to say the arrest “looks unlawful” —it must be shown which rule was breached, at what moment, with what legal consequence.
The firm analyses the available file, the applicable ground and the constitutional argument, in order to file and to appear at the hearing with the rigour the action demands. There is no ordinary second chance if the first hearing does not produce the expected result.
Why rely on this firm to file the habeas corpus petition
Juan Antonio Matiz is a criminal lawyer with an active professional licence, practising criminal law exclusively. The firm has no mixed practice: every case is criminal, and every step —including filing habeas corpus— is taken from a deep knowledge of the Colombian criminal system and of the judges before whom it is practised in Bogotá.
Habeas corpus demands two things at once that usually exclude each other: constitutional rigour in the argument and speed of response under urgency. That combination is the firm’s standard for this service. Habeas corpus petitions are not filed as a routine —they are built to win at the hearing.
Frequently asked questions
Nationwide attention for habeas corpus
When a person is unlawfully deprived of liberty, every hour counts. The work begins with an initial consultation in which we assess the situation quickly —the circumstances of the arrest, the time limits and the available documentation— and decide at once whether habeas corpus lies and how to act. That diagnosis rests on the firm’s own method of case study, which integrates factual, legal-doctrinal and evidentiary analysis so as to act precisely under time pressure.
The firm acts in liberty matters throughout the country. An arrest can happen anywhere in Colombia, and habeas corpus can be filed before the judicial authority of the place where the person is held or where the infringement occurred. Based in Bogotá D.C., we coordinate the action wherever it is needed, in person and remotely.
If a relative or someone close to you is detained and you believe the deprivation of liberty is unlawful, you can request an initial consultation immediately to assess whether habeas corpus lies and what routes are available.
What people usually ask us
Can anyone file habeas corpus, or only the detainee?
Anyone can. Law 1095 of 2006 (art. 1) provides that habeas corpus may be invoked by the person deprived of liberty, by any person on their behalf, or of the court’s own motion by a judge hearing any proceeding in which a person appears deprived of liberty. It requires no prior notarised power of attorney and the applicant need not be a lawyer —although the quality of the constitutional argument is what determines the outcome at the hearing.
How long does the judge have to decide?
36 hours from the moment the action is filed. The limit is strict: it cannot be extended or deferred. If the judge does not decide within that time, they incur disciplinary liability. The decision may grant the petition —ordering immediate release— or refuse it, with the corresponding appeals.
What happens if the judge refuses habeas corpus?
A decision refusing habeas corpus can be appealed to the superior of the judge who issued it. The appeal must be lodged within three days of notification. In parallel, other actions can be explored depending on the circumstances: a constitutional injunction for fundamental rights, applications to the judge of control of guarantees, or remedies within the criminal proceeding. A refusal does not close every option, but it does narrow the room for manoeuvre: the strategy for the appeal must be anticipated from the first instance.
Can it be filed where a judge has already imposed a detention measure?
In principle, habeas corpus does not lie to challenge a detention measure imposed by a judge of control of guarantees —that review is carried out through the ordinary remedies within the proceeding, which belong to the service of representation of persons deprived of liberty. It may lie, however, where the measure has expired without renewal, where the person is being held somewhere other than the place authorised, or where there is prolongation or arbitrariness in the execution for which no ordinary remedy is available. Each case requires individual analysis.
Does habeas corpus apply only to arrests in flagrante?
No. Habeas corpus lies in any case of unlawful, arbitrary or prolonged deprivation of liberty, regardless of whether the arrest was in flagrante, on a judicial order, or in any other form. The three grounds in Law 1095 of 2006 cover every form of detention: unlawfulness at the origin, arbitrariness in execution, and excess of the statutory time limits.
What documents are needed to file habeas corpus?
There is no exhaustive list of required documents —the action can be filed with whatever information is available at the time. What determines the strength of the argument is: the place of custody, the date and circumstances of the arrest, the case number if proceedings exist, and any act of the prosecution or the police that can be verified. The firm assesses the available information at first contact and advises what can be obtained urgently to reinforce the argument.
What is the difference between habeas corpus and a constitutional injunction in matters of personal liberty?
They are distinct constitutional actions with different purposes. Habeas corpus (art. 30 of the Constitution, Law 1095/2006) is the specific action protecting personal liberty against unlawful, arbitrary or prolonged arrests. The judge has 36 hours to decide. The injunction (art. 86 of the Constitution) protects any fundamental right —it can be used to protect rights infringed during custody (health, visits, dignified conditions), but it does not replace habeas corpus for challenging the lawfulness of an arrest. In some cases the two actions can be strategically complementary.