Juan Antonio Matiz Monroy — Lawyer, Universidad de los Andes · Specialist in Criminal Law, Universidad Sergio Arboleda · Professional licence 294.746 (C.S.J.)
The pre-trial detention hearing does not decide whether you are guilty. It decides two other things. First, whether from the material gathered it can reasonably be inferred that the offence occurred and that you took part in it. Second, whether the State has established that it needs to restrict your liberty while it investigates.
From that comes the error that costs most that afternoon. The defence concentrates everything on denying the offence, as if it were at trial, and leaves the second point unanswered. Because the law also requires whoever seeks detention to prove a concrete risk, and to prove that no lighter measure will do. The seriousness of the offence, by itself, is not that risk.
This piece goes through the hearing from the procedural and constitutional side: what the law requires and what can be brought. The same argument seen from the evidence is the subject of a separate piece.
1. Pre-trial detention in Colombia: what is argued at that hearing is not guilt
Pre-trial detention is precautionary. It serves to ensure the proceeding works, not to anticipate the sentence. The Supreme Court said so in explaining the provisional character of the interference with liberty while the accused is covered by the presumption of innocence: there is «the impossibility of weighing those preventive measures, in themselves, as facts indicating criminal responsibility» (CSJ, Cas. Penal, Sent. SP19617-2017, nov. 23/2017, Rad. 45899. M.P. Patricia Salazar Cuéllar).
That does not mean the evidence is not argued there. It means it is argued to a different extent. Not to establish responsibility, but to check whether there is material allowing a reasonable inference that the offence occurred and that the accused took part.
The difference is one of level of knowledge, not of subject matter. And it has a practical consequence: whoever comes to the hearing to prove innocence is litigating the trial, and leaves unanswered what is actually decided that afternoon.
1.1. Who applies for it and what they must bring
The prosecutor applies to the judge of control of guarantees, indicating the person, the offence, the material supporting it and its urgency. All of that is assessed at the hearing, and the defence may contest it (art. 306).
The victim or their counsel may also apply, and not only where the prosecutor stays silent. They may do so even if the prosecutor has already applied, if they invoke a different purpose, if they rely on first-hand circumstances the prosecutor did not consider, or if their application was refused (C. Const., Sent. C-278/2025, jun. 26/2025. M.P. Jorge Enrique Ibáñez Najar).
One point worth being clear about beforehand: the presence of defence counsel is a condition of validity of the hearing. Without counsel there is no valid hearing, and that defence may be chosen or public.
1.2. Two families of measures, not a list of offences
Article 307 does not organise the measures by offence, but by intensity. There are two custodial ones —detention in a prison establishment and detention at the residence the accused indicates— and ten non-custodial.
Among the non-custodial ones are electronic monitoring, periodic reporting to the judge, bail and prohibitions on leaving the country or contacting the victim. The judge may impose one or several.
That order is not decorative. The Constitutional Court called it the principle of gradualness. The legislature established «a range of possibilities» running from prison to residence and from there to the non-custodial ones, and the latter «may prove more suitable and less burdensome» for the same precautionary purposes (C. Const., Sent. C-318/2008, abr. 9/2008, exp. D-6941. M.P. Jaime Córdoba Triviño).
The articles listing offences serve another function. Article 313 lists the cases in which detention in prison lies, but that list is an entry filter, not an order to imprison. That the offence appears there enables the argument; it does not settle it. The requirements of article 308 must still be met, which is why the provision begins «the requirements indicated in article 308 having been satisfied».
One of those cases, that of a person previously arrested, was also narrowed: the arrests that count are only those ordered or legalised by a judge, and the sub-paragraph that presumed a future danger to society from them is unconstitutional (C. Const., Sent. C-567/2019, nov. 27/2019, exp. D-13147. M.P. Alberto Rojas Ríos).
2. The seriousness of the offence is not enough: there is a risk to prove
From that comes the consequence almost no one anticipates. Article 308 requires two things at once, and the second is usually what decides the result.
2.1. The two requirements the law asks for together
The first is a reasonable inference that the accused may be the author of or a participant in the offence. It is built on the physical evidence or lawfully obtained information.
Here there is an evidentiary argument. The Supreme Court requires that at the hearing «the physical evidence and other lawfully obtained information must be presented and explained, establishing, at the level of knowledge set by law, that the offence occurred and that the accused is its author or a participant» (CSJ, Cas. Penal, Sent. STP7721-2019, jun. 11/2019, Rad. 104439. M.P. Patricia Salazar Cuéllar). The occurrence of the offence forms part of what has to be established.
What changes is the requirement. At trial, conviction beyond reasonable doubt is needed; here it is enough that the inference be reasonable on what has been gathered. It is a lower threshold, not a formality: if what is produced does not connect that person to the act, the requirement is not met.
That is why article 306 allows the defence to contest it. Attacking the inference is a legitimate route and sometimes the decisive one, and it calls for a different tool from the one used here: how the evidence is argued at that hearing.
The case law ordered those requirements in a sequence. The Supreme Court set the rules of the hearing and established that the prosecution and victims’ representatives «bear the burden of giving reasons for their application», and that both they and the judge must go through three steps: the reasonable inference of participation, the necessity of the measure and the choice of the type of measure to be imposed (STP7721-2019, cit.).
2.2. What each purpose has to establish
The second requirement is that one of three conditions be met: that the measure is necessary to prevent the accused obstructing justice, that they constitute a danger to the safety of society or of the victim, or that it is probable they will not appear in the proceeding or will not comply with the judgment. These are the constitutional purposes of the measure.
Each purpose has its own content in the law, and is not shown with adjectives. Obstruction requires serious and well-founded grounds that the accused could destroy, alter, hide or falsify evidence, or induce witnesses and experts to give false information (art. 309). Danger to the victim requires well-founded grounds that they could attack the victim, their family or their property (art. 311).
The proviso to article 308 is the piece most often ignored and the one that yields most. It says that «the provisional legal characterisation against the accused shall not be, in itself, decisive» for inferring any of those three risks. And it adds that the judge must assess whether the requirements will be met in the future, «without taking into account exclusively the offence under investigation».
Translated: the offence charged is not the argument. It is the starting point. What has to be established is a risk that has not yet occurred and that projects forward.
2.3. The offence stopped being sufficient, and it was put in writing
Article 310 travelled the same road. Until 2015 the seriousness and manner of the conduct sufficed to assess danger to the community; today the provision says that, «in addition to the seriousness and manner of the offence and the sentence that may be imposed, the judge must assess» concrete circumstances of the person and their situation. The change from «shall be sufficient» to «in addition to» is not cosmetic, and the legislature arrived late: the Constitutional Court had already imposed that reading as a condition of constitutionality (C. Const., Sent. C-1198/2008, dic. 4/2008, exp. D-7287. M.P. Nilson Pinilla Pinilla).
The catalogue that remained is not untouchable either. Out of it went the previous charge and similar formulas: first «being indicted or subject to a detention measure» (C. Const., Sent. C-121/2012, feb. 22/2012, exp. D-8634. M.P. Luis Ernesto Vargas Silva) and, in 2023, «was or has been charged with violent offences» (C. Const., Sent. C-014/2023, feb. 2/2023, exp. D-14677. M.P. Paola Andrea Meneses Mosquera).
Hence the rule of that hearing: it is about establishing, not about indignation. An application built on the seriousness of the case, with no concrete circumstances, leaves article 308 empty.
3. What to take to the hearing
All of the above translates into different fronts of work. Two are legal and are argued at the hearing. One is evidence the defence gathers beforehand. And the last belongs to the family, who can start it today.
3.1. The burden of proving that the lighter measure will not do
The second proviso to article 307 says something rarely argued: «Custodial pre-trial measures may be imposed only where the applicant proves, before the judge of control of guarantees, that non-custodial measures are insufficient to secure the purposes of the measure».
The verb is prove, not mention. And the burden falls on whoever applies, not on whoever defends: before choosing the measure it must be assessed whether some non-custodial one will do.
That does not require ruling out the catalogue item by item. The Supreme Court approved reasoning that addressed the list as a whole, on the view that the required analysis had in fact been done (CSJ, Cas. Penal, Sent. STP16280-2019, nov. 26/2019, Rad. 107939. M.P. Patricia Salazar Cuéllar). What is not accepted is that the choice be taken for granted.
The defence can therefore work on the catalogue before working on the offence. If the risk alleged is non-appearance, one may ask why periodic reporting, a ban on leaving the country and electronic monitoring together do not suffice. If the risk is to the victim, one may ask why a ban on contact or on attending certain places does not suffice.
3.2. The framework within which the judge decides
All of this happens under article 295, which requires the rules authorising deprivation of liberty to be interpreted restrictively and demands that their application be necessary, appropriate, proportionate and reasonable. On that basis the Supreme Court described the guarantees judge’s task as a function of restraint, which «requires refusing the application for detention wherever it has not been lawfully argued or its justification does not satisfy criteria of reasonableness or proportionality of the limitation of the rights —affected by the measure— in relation to the constitutional purpose or purposes invoked» (CSJ, Cas. Penal, Sent. SP1832-2019, may. 28/2019, Rad. 53888. M.P. Patricia Salazar Cuéllar).
From that follows something not in the article but in the case law: the framework of the decision is the applicant’s reasoning. The judge has to verify that the burden was met, «without removing, qualifying, distorting or adding grounds to those supporting the application»; as a rule the judge may not impose a measure more burdensome than the one sought —a rule with which the Chamber refined an earlier line that allowed it—; and if the judge contemplates doing so in an exceptional case, it must be reasoned and the judge’s position must first be made known to the parties (CSJ, Cas. Penal, Sent. STP14534-2026, jun. 16/2026, Rad. 155698. M.P. Hugo Quintero Bernate).
3.3. The local ties that actually help
Where the risk alleged is non-appearance, article 312 names the factors precisely. The first is the lack of local ties. The law determines this by four anchors: the domicile, the seat of the family, that of the person’s business or work, and the ease of leaving the country definitively or remaining hidden.
Those four anchors are the index of the file worth assembling. Local ties are not asserted in submissions: they are proved with documents, and each document must point at an anchor.
For domicile, a land registry certificate or a current lease serves, with utility bills in the name of whoever lives there. For the seat of the family, the children’s civil registry records, a school certificate and a statement from whoever lives with them. For work, an employment certificate with length of service and salary, or tax registration and returns where the person is self-employed.
The fourth anchor is proved the other way round: one does not show ties, one neutralises the ease of leaving. There the passport lodged with the court comes in, along with the absence of property or immigration links abroad and the record of travel movements.
The other two factors in article 312 also admit evidence. The attitude towards the harm caused can be shown with verifiable acts prior to the hearing. And conduct during the proceeding is established with what is already on record: summonses attended, voluntary appearance, interviews attended.
A document signed by a relative assuring that the person “is hard-working and responsible” moves none of those anchors. An employment certificate showing six years of service does.
3.4. What the family can do today
The family has a task different from the accused’s, and it is exhausted in gathering and handing over. It does not consist in explaining the case or calling the prosecution to give context.
Gather the documents for the four anchors and hand them to counsel, not to the court. The lawyer decides which help, in what order they are presented and which are better left out.
Check dates and validity before handing them over. An employment certificate from two years ago, an expired lease or a bill in a third party’s name weaken the set instead of reinforcing it.
And note the date of the charge. From that day the time limits in article 317 start to run, and that date will be the starting point of several later applications.
You may also like: what to do in the first 36 hours after an arrest, the stages of criminal proceedings and habeas corpus representation.
4. Conclusions
The pre-trial detention hearing does not decide guilt. Article 308 requires two things together. The first is a reasonable inference that the accused may be the author or a participant; the second, one of the three constitutional purposes. That the offence appears in article 313 enables the argument but does not settle it. And the proviso to article 308 prevents the provisional legal characterisation from being, in itself, decisive.
The burden falls on whoever seeks detention. Under the second proviso to article 307, they must prove that non-custodial measures are insufficient. As a rule, the judge decides within what was sought and under the restrictive interpretation that article 295 requires. That is why local ties are not asserted: they are proved with documents on domicile, family, work and the ease of leaving the country.
That preparation is done before the hearing, with the file and the documents in hand. In the initial consultation we review with you or your family the application, the risks alleged and the local-ties file. On that assessment, the firm can take on representation at preliminary hearings and the criminal defence in the stages that follow.
Frequently asked questions
What people usually ask us
Does pre-trial detention mean I have already been convicted?
No. Pre-trial detention is a precautionary measure aimed at securing the conduct of the proceeding, not at anticipating the sentence. The Supreme Court has held that such preventive measures cannot be weighed, in themselves, as facts indicating criminal responsibility (Sent. SP19617-2017). The hearing at which it is imposed does not settle guilt: it settles whether the requirements of article 308 of Ley 906 de 2004 are established.
Is it enough for the offence to be serious for preventive detention to be ordered?
It is not enough. The proviso to article 308 provides that the provisional legal characterisation shall not be, in itself, decisive for inferring the risk, and that the judge must assess the requirements without taking into account exclusively the offence under investigation. Article 310, moreover, no longer says seriousness is sufficient: it requires concrete circumstances to be assessed.
Who has to prove that a non-custodial measure is not enough?
Whoever applies for the custodial measure. The second proviso to article 307 provides that custodial measures may be imposed only where the applicant proves, before the judge of control of guarantees, that non-custodial measures are insufficient to secure the purposes of the measure. It is not a burden on the defence.
What documents establish local ties?
Article 312 determines local ties by domicile, the seat of the family, that of the business or work, and the ease of leaving the country or remaining hidden. Each anchor admits documentary proof: a land registry certificate or a current lease with utility bills, civil registry records and school certificates, an employment certificate or tax registration and returns, and the passport lodged with the court. A character reference establishes none of those anchors.
Legal and bibliographic references
Legislation. Constitución Política de Colombia, arts. 28 y 29. · Ley 906 de 2004, arts. 295, 296, 306, 307, 308, 309, 310, 311, 312, 313, 314 y 317. Las circunstancias que el art. 310 obliga a valorar, además de la gravedad y modalidad de la conducta y la pena imponible, son: la continuación de la actividad delictiva o la probable vinculación con organizaciones criminales; el número y la naturaleza de los delitos imputados; el hecho de estar disfrutando un mecanismo sustitutivo de la pena; la existencia de sentencias condenatorias vigentes; el uso de armas o de sustancias que pongan en peligro la salud; el abuso sexual con menor de catorce años; y la pertenencia a un grupo de delincuencia organizada. Sobre ese catálogo, la Sent. C-469/2016 declaró exequibles, por el cargo analizado, los numerales 2 a 7.
Case law. C. Const., Sent. C-774/2001, jul. 25/2001, exp. D-3271. M.P. Rodrigo Escobar Gil. · C. Const., Sent. C-318/2008, abr. 9/2008, exp. D-6941. M.P. Jaime Córdoba Triviño. · C. Const., Sent. C-1198/2008, dic. 4/2008, exp. D-7287. M.P. Nilson Pinilla Pinilla. · C. Const., Sent. SU-122/2022, mar. 31/2022. M.P. Diana Fajardo Rivera, Cristina Pardo Schlesinger y José Fernando Reyes Cuartas. · C. Const., Sent. C-121/2012, feb. 22/2012, exp. D-8634. M.P. Luis Ernesto Vargas Silva. · C. Const., Sent. C-469/2016, ago. 31/2016, exp. D-11214. M.P. Luis Ernesto Vargas Silva. · C. Const., Sent. C-567/2019, nov. 27/2019, exp. D-13147. M.P. Alberto Rojas Ríos. · C. Const., Sent. C-014/2023, feb. 2/2023, exp. D-14677. M.P. Paola Andrea Meneses Mosquera. · C. Const., Sent. C-278/2025, jun. 26/2025. M.P. Jorge Enrique Ibáñez Najar. · CSJ, Cas. Penal, Sent. SP19617-2017, nov. 23/2017, Rad. 45899. M.P. Patricia Salazar Cuéllar. · CSJ, Cas. Penal, Sent. SP1832-2019, may. 28/2019, Rad. 53888. M.P. Patricia Salazar Cuéllar. · CSJ, Cas. Penal, Sent. SP3702-2019, sep. 6/2019, Rad. 53976. M.P. Patricia Salazar Cuéllar. · CSJ, Cas. Penal, Sent. STP7721-2019, jun. 11/2019, Rad. 104439. M.P. Patricia Salazar Cuéllar. · CSJ, Cas. Penal, Sent. STP16280-2019, nov. 26/2019, Rad. 107939. M.P. Patricia Salazar Cuéllar. · CSJ, Cas. Penal, Sent. STP14534-2026, jun. 16/2026, Rad. 155698. M.P. Hugo Quintero Bernate.
Scholarship. GONZÁLEZ LAGIER, Daniel. Quaestio facti. Ensayos sobre prueba, causalidad y acción, cap. II, «La inferencia probatoria».
Note on currency. The text of the articles cited corresponds to the official version published by the Secretariat of the Senate in its database of express validity and constitutional review, consulted on 12 September 2026. Relevant reforms incorporated: Ley 1760 de 2015, arts. 1 a 4, and Ley 1786 de 2016, arts. 1 y 2; Ley 2197 de 2022, art. 21, corrected by art. 9 of Decreto 207 de 2022; Ley 2292 de 2023, art. 17; Ley 2356 de 2024, art. 2; Ley 2375 de 2024, art. 5; and Ley 2477 de 2025, art. 6. For members of organised criminal and armed groups, arts. 307A, 313A and 317A, added by Ley 1908 de 2018, also apply.
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.).