Juan Antonio Matiz Monroy — Lawyer, Universidad de los Andes · Specialist in Criminal Law, Universidad Sergio Arboleda · Professional licence 294.746 (C.S.J.)
He found out he is under investigation, or suspects he is, and the first thing he is told is to wait: that when they call him he will see, that nothing is formal yet. It is the most expensive advice of this stage.
The defence of a criminal case does not begin with the charge. It begins with the first decision anyone takes about the facts, and that decision is already being taken. What at trial is called the theory of the case is built here, with what there is and with what can still be obtained.
1. Under investigation in Colombia: you found out, and were told to wait
The Prosecution Service does not have to tell you. The inquiry stage runs from the report of the offence to the charge or an early exit, and during that stretch you are not an accused: you are an indiciado, a person identified as a possible author or participant without charges having been brought.
Three words are worth keeping straight. The inquiry is that initial stage. Closure is the prosecutor’s order where the act did not occur or lacks the objective elements of the offence —subject, conduct, result or causal link— (C-1154 of 2005): it does not extinguish the action and does not become res judicata. Discontinuance is ordered by the judge on the prosecutor’s application, on the grounds in article 332, and it does become res judicata. They are not synonyms and they are not applied for in the same way.
The misunderstanding is to believe that rights start afterwards. Article 267 recognises, from the inquiry stage, the power to consult a lawyer and to look for physical evidence, and the Constitutional Court has held that the right of defence has no temporal limitation: it applies from this stage (C-799 of 2005 and C-025 of 2009). You do not have to wait for a summons to use those powers. You do have to have an idea of what for.
2. Every week without a theory, the prosecution builds alone
From that follows the consequence almost no one anticipates. While the person under investigation waits, the prosecution does not.
It can interview witnesses, request information, carry out inspections and order searches or interceptions without notifying you. Judicial review comes afterwards, not before. And until the charge there is no duty to summon the interested party and their counsel (proviso to art. 237). Before that moment a rule applies that is worth knowing: if the person under investigation already knows of the inquiry and asks, the judge must authorise their intervention and that of their lawyer (C-025 of 2009). Participation depends on knowledge, and knowledge does not depend on the prosecution.
Finding out, for that reason, usually happens sideways. The other side announces it; a summons to questioning arrives; a summons to a hearing before the guarantees judge appears; a search of the Judiciary or Prosecution Service databases turns something up; or a third party hears of it before you do. That the search comes back empty rules nothing out: at the inquiry stage that is normal, because the person under investigation does not usually appear in public records until there is a preliminary hearing.
Meanwhile time is not neutral. Evidence disperses, witnesses adjust their accounts, documents are lost, and whatever is discussed with third parties or handed over without judgement gets taken in. At the end of that stretch the prosecution has a version of the facts assembled without contradiction.
And closure does not fully close either: as it does not become res judicata, the investigation can resume if new material appears. Waiting is not a position. It is giving up the ground.
3. The theory of the case is built here
The theory of the case is not the opening statement and it does not wait for trial. It is adopted at first contact, with what is available and with what can still be obtained, and it is revised as the evidentiary demand rises; the difference between the two is set out in the article on theory of the case and opening statement. Here, first contact is the inquiry stage.
That translates into four decisions, and the powers in the Code are the materials for each of them.
3.1. Which facts you maintain, and on what
First, what your version of events is, stated as facts and not as a rebuttal. Without that, everything else is reaction.
Then, where it comes from. Article 267 allows you to look for and put in exculpatory physical evidence, or to ask the judicial police to examine it; article 271 allows you to interview people; after the charge, article 268 adds the power to package it and send it for expert examination. Looking is something you can do. Whether what is found is admissible is another matter: digital evidence has collection rules of its own and interviews have to be documented. That is what the private forensic investigator is for, and it is worth knowing what is expected of someone who is going to give evidence, explained in the guidance for witnesses.
What is collected today exists. What is left for later sometimes no longer does.
3.2. What outcome you are going to ask for
A theory without an application is an opinion. If the act lacks the objective elements of the offence, what lies is an application for closure (art. 79). If the act occurred and what operates is a ground excluding responsibility —a justification or a ground of non-culpability—, what lies is asking the prosecution to apply for discontinuance (arts. 331 and 332).
Applying is the most technical power of all. It is exercised by a reasoned written submission, with the precise ground and the evidence to support it, not with a letter asking them to close the file.
There are also routes that do not depend on the offence being absent: the principle of opportunity (arts. 321 to 330), conciliation in querellable offences (art. 522), extinction through full redress (art. 78A, added by Law 2477 of 2025 for a closed group of offences) and, if the time limit in article 175 expires without a decision, the demand for a decision on the merits. Which one lies is dictated by the theory, not by haste.
3.3. What you decide not to do
Silence is not a reflex or a free-standing right: it is a decision of the theory. No one is obliged to give evidence against themselves (art. 33 of the Constitution), and that right operates before, during and after any questioning, without silence being taken as an indication of anything. Exercising it requires no technique; deciding what to answer, what to hold back and when, does. Staying silent by reflex also has a cost, and how that decision is prepared is set out in the article on the summons to questioning.
The same goes for what you put in. Handing over everything reveals the position; handing over nothing wastes the one stage at which a single piece of information can weigh on the decision to close the file. The useful question is not how much to hand over, but which fact of your version that information establishes, and whether it suits you for the prosecution to have it now.
There are also three things decided once and for all: do not discuss the facts with third parties, do not sign anything about the case without review, and do not approach the prosecution to “clarify” without counsel.
3.4. Where to start this week
Five acts, in this order.
Check whether there is a case in your name in the Judiciary and Prosecution Service databases, knowing that an empty result does not rule out an inquiry. Gather and preserve what can disappear: emails, contracts, invoices, records, the names of witnesses. Stay silent with judgement, which is not the same as staying silent out of habit.
Appoint counsel. The right arises with the investigation, not with the summons or with the charge (art. 29 of the Constitution), and it is exercised without authorisation or formality. Ask in writing for the facts attributed to you and for the documents not subject to confidentiality; a vague request gets a generic answer.
You may also like: the stages of criminal proceedings, what the prosecution must prove to seek pre-trial detention and strategic criminal defence.
4. Conclusions
During the inquiry stage you are an indiciado, not an accused, and the Prosecution Service does not have to tell you. Even so, article 267 and the Constitutional Court recognise your right of defence from this stage. While you wait for a summons, the prosecution interviews, inspects and assembles a version of the facts without contradiction. And closure does not fully close, because it does not become res judicata.
That is why the theory of the case is adopted here, at first contact, and it translates into four decisions. Which facts you maintain and on what, and what outcome you apply for: closure, discontinuance or another route. What you decide not to do, starting with silence, and which acts come first this week. What is not decided at the inquiry stage will be argued later, with less material.
That is the work of the initial consultation: two one-hour meetings and a written opinion. In them we review what is known of the inquiry, what is worth preserving and which theory of the case and application fit. From that diagnosis, the firm can provide criminal investigation advice and take on your criminal defence if the case moves forward.
Frequently asked questions
What people usually ask us
How do I know whether there really is a criminal case against me?
You can check directly in the Judiciary databases (consultaprocesos.ramajudicial.gov.co) using your identity number.
You can also ask the Prosecution Service for information on proceedings in your name. If the search returns nothing, that does not conclusively rule out an investigation at the inquiry stage, which may not yet be in the judicial system. Your lawyer can use additional channels of verification.
The other side says they will report me, or that they already have. Should I do anything?
Yes, but without rushing. The first thing is to verify whether the complaint actually exists —many threats to report are pressure tactics with nothing behind them. The second is not to take unilateral decisions: do not go to the Prosecution Service to “clarify” the situation without advice, do not contact witnesses or the other side about the substance of the matter, and do not sign documents relating to the facts without legal review.
The initial consultation allows the real risk to be assessed and whether there are reasons to act preventively.
Can I act in the investigation myself, without a lawyer?
Technically, some acts —such as checking the court databases or collecting your own documents— can be done directly. However, acts with legal effects —a formal request for information to the prosecution, submitting evidence, taking part in proceedings, applying for closure— require technical knowledge of criminal procedure. An error in a badly drafted application, an imprecise statement or a document filed out of time can damage the defence.
What if I do nothing and wait for the situation to resolve itself?
During the inquiry stage, every period of inactivity by the defence is a period in which the prosecution builds its version unopposed. Evidence that could have been collected disappears, witnesses change their accounts, documents deteriorate or are deleted.
In most cases an investigation does not resolve itself: it moves towards a charge if the prosecution has enough material, or towards closure if it does not —what the defence can do is not to guarantee an outcome, but to put in at the right moment the material the prosecution will take into account when it decides.
Does a closed case or an acquittal stay on my record?
It depends on the type of record. A case closed at the inquiry stage generally does not create a criminal record in the strict sense, but it may appear in Judiciary or Prosecution Service databases.
An acquittal does not create a record, but the record of the proceeding may persist. In either case, if that information is causing you harm, the right to be forgotten can be pursued before the relevant body or before the Superintendence of Industry and Commerce.
What does an initial consultation cost?
The initial analysis consultation has a set price, which you are told when booking. It is not an exploratory call: it is a structured session in which the specific situation is analysed, the real risks are identified, the available options are defined and a plan of action is established.
At the end, you have a clear diagnosis of your procedural position and of the decisions you have to take. Book an initial consultation.
Legal and bibliographic references
Legislation: Constitución Política de Colombia, arts. 29 y 33. · Convención Americana sobre Derechos Humanos, arts. 7.5, 8.1, 8.2 y 8.2.g. · Pacto Internacional de Derechos Civiles y Políticos, arts. 9 y 14.3.g. · Ley 906 de 2004: arts. 8, 69, 79, 175, 237, 267, 268, 271, 286, 294, 321-330, 331, 332, 344 y 522. · Ley 1453 de 2011, art. 49 (términos de la indagación). · Ley 2205 de 2022, art. 2 (términos en delitos contra menores de edad). · Ley 2477 de 2025, arts. 9 y 10 (preclusión) y art. 78A del C.P.P. (extinción por reparación integral). · Ley 599 de 2000, art. 64 y ss. (efectos de la pena cumplida). · Ley 1581 de 2012 (protección de datos personales). · Ley 1709 de 2014 (efectos de antecedentes penales).
Case law: Corte Constitucional: C-412/1993 · C-591/2005 · C-799/2005 · C-1154/2005 · C-209/2007 · C-025/2009 · C-127/2011 · C-893/2012 · SU-458/2012 · T-277/2015 · C-559/2019 · C-067/2021. · Corte Suprema de Justicia, Sala Penal: AP6226-2014, rad. 44682 · STP3038-2018 · STP17840-2023, rad. 134375 · STP5195-2025. · Consejo de Estado: rad. 11001-03-15-000-2021-03215.
Institutional guidelines: Fiscalía General de la Nación, Directiva 0002 del 29 de abril de 2025, por la cual se establecen lineamientos generales para proferir órdenes de archivo.
Scholarship: Bernal Cuéllar & Montealegre Lynett. El proceso penal. Tomo I y II. Externado, 6.ª ed., 2013. · Defensoría del Pueblo / USAID. Técnicas de investigación de la defensa para el Sistema Penal Acusatorio Colombiano. Bogotá, 2005. · Múnera-Jaramillo & Zapata-Martínez. “El derecho a la no autoincriminación en Colombia.” Nuevo Foro Penal, 2024.
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.).