If you are reading this, someone has been arrested, has received a summons to a charging hearing, or has just learned of a search. Or you are the victim, a company or a public body, and you want your position heard from the very first hearing. What follows is decided in hours, before a judge of control of guarantees.
What is at stake
Preliminary hearings are the shortest in a criminal proceeding and the ones that weigh most. In a single session it is decided whether an arrest was lawful and which facts are attributed to the person under investigation. Also whether that person is deprived of liberty while the proceeding runs, and what evidence the prosecution will be able to use. The victim is not a passive subject of that proceeding: the victim has rights to truth, to justice and to redress. In these hearings those rights begin to be asserted, or lost. None of it is easily corrected afterwards.
Four hearings, one judge
All of them are held before the judge of control of guarantees, who does not try the case: the judge checks that the prosecution acts within the law. The firm represents in them both the person under investigation and the victim, whether an individual, a company or a public body of any kind. The victim does not attend to watch: the victim intervenes with rights of their own.
Legalisation of arrest. A person who has been arrested must be brought before a judge within the following 36 hours. The defence checks whether there was a judicial order or a genuine arrest in flagrante, whether the detainee’s rights were respected and whether the time limit was met. An unlawful arrest ends in immediate release, even though the proceeding continues.
Formulation of the charge. The prosecution communicates the legally relevant facts and the offence it attributes. It is not a conviction, but from that point time limits run and the possibility opens of accepting the charges in return for a reduced sentence. That decision is irreversible and is not taken in the room without having first read what evidence the prosecution holds. The victim attends with counsel and makes sure the charged facts capture the harm suffered.
Pre-trial detention. Preventive detention is exceptional. The prosecution must show a reasonable inference of authorship and prove one of the statutory purposes. There are three: risk of obstruction, danger to the community or to the victim, and risk of non-appearance. The defence contradicts each one with evidence of its own and asks, where appropriate, for a non-custodial measure. The victim may request the measure directly and support with evidence the danger they face.
Review of the legality of investigative acts. Searches, seizures, interception of communications and searches of databases undergo a subsequent review by the judge, within the following 24 hours. If the act was carried out without an order, beyond its scope or without chain of custody, the evidence it produced is excluded and never reaches the trial. The victim’s interest is the opposite: that the evidence gathered should survive that review.
These four are the most frequent, not the only ones. Before the same judge are also heard the revocation or substitution of the detention measure, the discontinuance of the case, the principle of opportunity and the taking of evidence in advance. And any other application by the prosecution, the defence or the victim. The service adapts to any of them with the same method.
The method, in a hearing that lasts hours
In preliminary hearings the firm applies the same four planes with which it works every case, compressed into the time available. The factual plane reconstructs the arrest or the search minute by minute, with its source: the judicial police report, the record, the witnesses. The legal plane sets the offence charged against the purposes the law requires for a detention measure. The evidentiary plane measures the material the prosecution presents against the standard for that hearing, which is not the trial standard but is not zero either. The strategy decides what to ask for and in what order. Release for unlawful arrest, a non-custodial measure, exclusion of a search, or silence in the face of a charge that cannot yet be contradicted.
When the firm represents the victim, the starting point is that the victim is not a passive subject: the victim has rights and exercises them in the room. The work is the same from the other side. Establishing the harm and the risk with evidence, and defending the legality of the material the prosecution gathered. Whatever is said or accepted in that room stays in the file. That is why the firm does not improvise: it arrives with the file read and with a position on every point the judge is going to resolve.
How the work begins
Where there has been an arrest there is no time for a written opinion. The firm takes the case, obtains the arrest report and appears at the legalisation hearing; the full diagnosis is made afterwards, with the complete file.
Where the hearing has been listed days in advance, the first act is the initial consultation. It is a written opinion on which facts there are and from what source, what evidence the prosecution holds and what should be asked for. With that opinion you decide whether to retain the firm for the hearing.
Whoever retains the firm need not be in Colombia. Representation is exercised through counsel, the consultation is remote and hearings are followed virtually where the court allows it. This applies to the person under investigation who is abroad and to the victim, company or public body based outside the country. Advice and client care are also available in English.
After the preliminary hearings
What is decided before the guarantees judge opens the rest of the proceeding. If the case goes on to indictment and trial, the firm continues with the criminal defence or with the representation of the victim. The theory of the case is the same. If preventive detention was imposed, the review, substitution and revocation of the measure are dealt with under persons deprived of liberty. If the 36-hour limit expired without the detainee being brought before a judge, habeas corpus lies, which is a separate and more urgent action.
Initial consultation and coverage
The initial consultation is the diagnosis described above. It has a price, which is deducted from the fee if you retain the firm within 30 days of the opinion. The firm appears before judges of control of guarantees throughout the country, in person or virtually. It acts for clients in Colombia and abroad. If the hearing is already listed, the time to prepare the position is now.
Frequently asked questions
A relative was arrested a few hours ago. What do I do first?
Find out where they are and with which prosecutor’s office the arrest was registered, and contact the defence at once. The prosecution has 36 hours to bring them before a judge of control of guarantees. At that hearing the lawfulness of the arrest is reviewed and, almost always, the charge is formulated and pre-trial detention is sought in the same session.
Should I accept the charges at the charging hearing?
Not in the room and not without having read the evidence. Accepting the charges at that stage gives the largest sentence reduction, but it is irreversible: it waives the trial and the chance to contest the evidence. The decision is taken with the firm’s written opinion on what the prosecution holds and what it can sustain in a hearing.
Is pre-trial detention automatic after the charge?
No. Preventive detention is the exception. The prosecution must prove a reasonable inference of authorship and at least one statutory purpose. There are three: obstruction of justice, danger to the community or to the victim, and risk of non-appearance. The defence contradicts those purposes with evidence and asks, where appropriate, for a non-custodial measure.
My home or office was searched without an order being shown. Can that be challenged?
Yes. Searches, seizures and interceptions undergo a legality review before the guarantees judge within the following 24 hours. If the act was carried out without an order, beyond its scope or without chain of custody, the evidence is excluded. It cannot be used at trial.
I am the victim. Can I have a lawyer at these hearings?
Yes. The victim is not a passive subject of the proceeding: the victim has rights of their own and exercises them in the preliminary hearings through counsel. The victim may request pre-trial detention and establish the risk they face, make sure the charge captures the harm, and defend the legality of the evidence. This applies to individuals, companies and public bodies of any kind.
I am outside Colombia. Can you still represent me?
Yes. Representation is exercised through counsel, the initial consultation is remote and hearings are followed virtually where the court allows it. This applies to the person under investigation who is abroad and to the victim or entity based outside the country. Advice and client care are also available in English.