Juan Antonio Matiz Monroy — Lawyer, Universidad de los Andes · Specialist in Criminal Law, Universidad Sergio Arboleda · Professional licence 294.746 (C.S.J.)
You have been arrested, or someone close to you has, and in the coming hours everyone will have an opinion. It is worth starting with what is not happening: this is not the trial and no one has been convicted. No one has to convince the police of anything.
What is happening is that a clock started at the moment of the arrest, and that within thirty-six hours a judge has to review that arrest. Until then, what protects most is what you do not say.
1. Arrested in Colombia: you have been arrested, and that is not yet the case
An arrest is not a conviction, an indictment or the trial. It is the start of a procedure that in the next two days passes through a single filter. A hearing in which a judge of control of guarantees reviews whether the arrest was lawful. That is the legalisation of arrest, and it does not settle whether the person did what is attributed to them.
Meanwhile, the clock is already running. It started at the moment of physical apprehension, not when the person was taken to the holding unit or registered there. The unit receives, identifies and draws up the report; it legalises nothing. Nor does the prosecution.
Hence those around the detainee usually mistake the task. No one has to convince the police, or explain the case to the officer on duty, or “clear up” a misunderstanding before the lawyer arrives. That conversation does not bring liberty closer. It makes things worse, and it is worth seeing why.
2. Not knowing what to do is what makes the case worse
The damage of these hours almost never comes from what the police did. It comes from what someone does who does not know what to do.
Explaining oneself to the patrol officer, signing an account of the facts, narrating what happened by telephone from the holding unit, discussing it on WhatsApp or posting it on social media: all of that hands over material. It is not erased afterwards. It stays, and it is used in what follows.
Because the hearing coming up has a narrow object. The judge asks how the arrest was made: whether there was a valid and properly identified warrant, or whether some form of arrest in flagrante applied. The judge reviews the timeline of the thirty-six hours. And checks whether the rights in article 303 were communicated, whether the treatment was dignified and whether the person in the room is the one the warrant identifies.
The judge does not ask whether you did it. The theory of the case is not argued there, no substantive defence is presented and nothing is negotiated. Whoever speaks “to clear things up” does not advance their defence: they compromise it.
And what comes next may be the same day. Once the arrest is legalised, the prosecutor can immediately apply to bring the charge and seek pre-trial detention. These are separate acts, with requirements of their own, which are not faced by improvising in the corridor. That is why criminal defence should be retained before the hearing, not after.
The rule of these hours, then, is containment and not explanation. What follows is the minimum picture for understanding where you stand, and the concrete acts that protect you.
3. The picture and the steps
3.1. The picture: how the arrest happened and when the clock started
When the call comes in, a lawyer asks the same thing: how the apprehension happened and at what time.
There is arrest in flagrante where the person is caught during the offence, or identified at that moment and apprehended immediately after pursuit or on the victim’s identification, or found with objects or traces from which it reasonably appears that they have just committed it (art. 301). There is arrest on a judicial warrant where there is a written order from a judge of control of guarantees, with date, offence, identifying details and validity: ask to see it and note its details (art. 297). And there is arrest during a search where the judicial police enter premises on the prosecutor’s order and make an arrest there; there is also an exceptional arrest on the prosecutor’s order, marginal, which is likewise reviewed before the judge.
The form changes what is challenged at legalisation. It does not change the right to silence, which is the same in all of them.
The clock, for its part, starts with the physical detention. The prosecutor must bring the person arrested before the judge of control of guarantees, immediately or at the latest within the following thirty-six hours (art. 302); where there was a judicial warrant, the period is the same (art. 297).
Article 28 of the Constitution requires the detained person to be placed at the judge’s disposal within that period, and the Constitutional Court made clear that this means being physically brought before the judge. Filing the application for a hearing does not exhaust the period. That much of the period is used does not by itself make the arrest unlawful; what is serious is that it should expire without review, or that the arrest had no legal basis.
3.2. What the person arrested should do (and should not)
Article 303 sets four rights that must be communicated immediately. They are worth exercising in this order.
Ask why you are being arrested and who ordered it. It is the first of those rights. If there is a judicial warrant, ask for its number and date. If you are told it is arrest in flagrante, listen to what act is attributed to you, but do not argue about it there.
Say who should be told. The officer responsible must communicate the arrest to the person you name. Give a name and a number that will answer. That call is so that you can be located, not to narrate what happened.
Stay silent. You have the right to say nothing, what you say can be used against you and you are not obliged to give evidence against your spouse, permanent partner or close relatives (art. 303.3; art. 33 of the Constitution). The Code also provides that silence may not be used against you (art. 8, lit. c). Staying silent is not accepting anything.
Ask for a lawyer of your choosing. You have the right to appoint one and to meet them as soon as possible; if you cannot, the public defender service takes on the defence. In the meantime: do not sign accounts, cooperation records or statements of defence. Identifying yourself and signing the record of your details is not a confession; signing an account of the facts does compromise you.
3.3. What the family should do
The family has a different and almost opposite task: not to explain, but to locate and retain. In that order.
Note the exact time and place of the apprehension, and who told you. That detail is what later allows the period to be measured. Write it down as soon as you know it, by the clock, not from memory.
Find out which station, holding unit or duty prosecutor’s office they were taken to, and ask for the case number. Do not argue the facts with the officials, on WhatsApp, or on social media.
Retain a lawyer before any statement is taken. That is the one step that cannot wait: when the defence arrives after the interview, it arrives to manage damage that could have been avoided.
Take the detainee’s identity card, their details of local ties —where they live, where they work, with whom— and their full name. For this hearing no “proof of innocence” is needed. It is not the moment to prove anything.
3.4. If the period expired or the arrest had no basis
The route then is not to talk more. It is habeas corpus, which lies where the deprivation of liberty is unlawful from the outset, where it is unlawfully prolonged or where it is arbitrary. It is not one more remedy: it is a constitutional action with its own procedure and short time limits.
Two clocks should not be confused. The thirty-six hours of the arrest run from the apprehension and are met by effective judicial review. The habeas corpus period is a different one and runs from the moment the action is filed. How it lies and what has to be established is explained on the page on habeas corpus representation.
You may also like: the stages of criminal proceedings, what to do if you are summoned for questioning and assistance for persons deprived of liberty.
4. Conclusions
An arrest is not a conviction or the trial. From physical apprehension, thirty-six hours run for the person to be brought physically before a judge of control of guarantees. Neither the holding unit nor the prosecution legalises the arrest. That hearing reviews how the arrest was made, whether the article 303 rights were communicated and whether the period was met. It does not review guilt.
The rule of these hours is therefore containment and not explanation. The person arrested asks the reason, names someone to be told, stays silent and asks for a lawyer of their choosing, signing no account. The family notes the time and place, locates the detainee and retains the defence before any statement is taken. If the period expired or the arrest had no basis, the route is habeas corpus.
Once the arrest is legalised, the charge and pre-trial detention may be sought the same day. In the initial consultation we review with you or your family how the apprehension happened and which period is running. From there, the firm can take on representation at preliminary hearings and, where it lies, bring a habeas corpus action.
Frequently asked questions
What people usually ask us
Can I say “just a little” so that they release him?
Speaking does not produce release. Liberty in these hours depends on the legality review and on what the prosecutor applies for, not on what the detainee explains. A partial account fixes a position before the file is known and leaves a record of what was said. Article 303.3 allows silence, and article 8 prevents silence being used against you.
Has the holding unit already “legalised” the arrest?
No. The unit receives, identifies and prepares the report. Legalisation is done by a judge of control of guarantees at a hearing. Nor does the prosecution legalise: it brings the person arrested before that judge within thirty-six hours (art. 302). Until that happens, judicial review is pending.
What if the arrest happened during a search?
The search and the arrest are reviewed separately. The search has its own legality review and the arrest is examined at the legalisation hearing. Note the time of entry, who produced the warrant and what was taken. Those details help the defence; arguing them on the spot does not.
Does silence harm me at the hearing?
No. Article 33 of the Constitution protects against giving evidence against oneself, and the Code provides that silence may not be used against the person (art. 8, lit. c). Guilt is not weighed at the legalisation hearing. What does weigh is an account given without counsel, because it is recorded and used later.
Legal and bibliographic references
Legislation: Constitución Política de Colombia, arts. 28, 29 y 33. · Ley 906 de 2004: arts. 8, 219, 229, 237, 297, 298, 300, 301, 302 y 303.
Case law: Corte Constitucional: C-024 de 1994 · C-730 de 2005 · C-185 de 2008 · C-163 de 2008 · C-137 de 2019 · C-303 de 2019. · Corte Suprema de Justicia, Sala de Casación Penal: Rad. 26310 de 2007.
Note on currency: Ley 2477 de 2025 repealed the restriction on sentence reduction for arrest in flagrante contained in the proviso to art. 301 of Ley 906 de 2004 (CSJ, Cas. Penal, Sent. SP141-2026, rad. 64593). Arrest in flagrante remains a form of apprehension; its sentencing consequences are not the business of the first hours.
About the author
Juan Antonio Matiz Monroy — A graduate of the Universidad de los Andes (2017) with a specialisation in Criminal Law from the Universidad Sergio Arboleda (2021), he built a solid command of oral litigation at the Universidad del Rosario and at the Universidad de Salamanca, Spain. He sharpened his rigour in evidential reasoning with CESJUL and the Universidad Externado de Colombia. In parallel he went deeper into asset forfeiture —a field that requires understanding the State’s logic on property with the same rigour with which liberty is defended—. He is currently a candidate for the Master’s in Evidential Reasoning at the Universitat de Girona (Spain) and the Università degli Studi di Genova (Italy). Professional licence 294.746 (C.S.J.).