Habeas Corpus: protecting Colombians’ freedom

Habeas Corpus in Colombia: A Complete Guide

Freedom is a fundamental right of all Colombians. Article 13 of the Colombian Constitution affirms that all are born free and equal before the law.

However, it is well known that this right can be revoked as punishment when a person (or group of people) commits criminal acts that endanger other members of the community.

While a due process is required for a competent authority to deprive a person of their freedom, there are cases where this process is not followed, or it is believed not to have been followed. This is when the affected person, or their representative, can invoke Habeas Corpus.

Since the 1991 Constitution, Habeas Corpus has been integrated as a mechanism to protect people's freedom, as stipulated in Article 30 of the Constitution:

“Anyone deprived of their liberty, and who believes they are being held illegally, has the right to invoke Habeas Corpus before any judicial authority, in all time, either personally or through a representative. This must be resolved within thirty-six hours.”

Later, in 2006, Law 1095 was created to regulate the aforementioned article. Article 1 of the law explains that Habeas Corpus:

“…is a fundamental right and, at the same time, a constitutional action that protects personal freedom when someone is deprived of their liberty with violation of constitutional or legal guarantees, or when this detention is illegally prolonged. This action may only be invoked or initiated once, and the principle pro homine will apply to its decision.”

This mechanism is fundamental within Colombian Criminal Law. It is also relevant in the context of Immigration Law.

When is an Arrest Permitted?

The main objective of Habeas Corpus is to restore the freedom of a person when it is believed they have been deprived of it illegally.

To determine if an arrest is properly conducted, the following requirements must be met:

• A judge must issue a written arrest warrant stating the reasons for the detention.
• The officers must read the warrant to the detainee, explaining the reasons for their arrest.
• Once arrested, the detainee must be taken before a guarantee judge to legalize and formalize the detention. You can learn more about this process in the article on the Capture Legalization Hearing in Colombia.

Police can detain a person in flagrante delicto, that is:

• When a person is caught committing a crime.
• If captured during a pursuit or in response to a call for help.
• When a person is found with evidence that suggests a crime was committed.

If the arrest does not follow the aforementioned procedures, the person, or a third party, can invoke Habeas Corpus to defend their right to freedom. Learn about other aspects related to deprivation of liberty, such as Parole in Colombia How does it work? or Release due to the expiration of terms.

If you have any doubts about the case, it is highly recommended to have advice from a criminal lawyer or Immigration Lawyers in Colombia.

Who and How is the Habeas Corpus Petition Filed?

This right can be invoked by the affected person or a third party before any competent entity, at any time while the violation persists. A response must be given within 36 hours.

Habeas Corpus does not require formalities, so it can be invoked verbally or in writing. If a person is representing the affected party, they can invoke the mechanism without needing power of attorney.

Regarding the information that must be provided, Article 4 of Law 1095 of 2006 states that the following is needed:

1. The name of the person on whose behalf the action is filed.
2. The reasons why the deprivation of liberty is considered illegal or arbitrary.
3. The date of imprisonment and the place where the person deprived of liberty is located.
4. If known, the name and position of the official who ordered the deprivation of liberty.
5. The name, identification document, and place of residence of the applicant.
6. An affirmation, under oath (considered given by the submission of the petition), that no other judge has taken cognizance of the request for Habeas Corpus or decided on it.

The same article also states that not having all this information is not an impediment to filing Habeas Corpus, provided the information given is sufficient to initiate the process. There are also Administrative Leave for Persons Deprived of their Liberty in certain cases.

Decision and Response Time

Once the Habeas Corpus is presented to a competent judge, they have 36 hours to issue a verdict.

During this time, the judge will study the case and meet with the parties to gather all necessary information, also considering the Victims’ rights in the Colombian criminal process.

Once the study is complete, the judge will issue the ruling.

If the ruling is in favor of the accused, they must be released immediately. If the ruling is against the accused, the detention will continue, but an appeal can be made to a higher court if it is considered absolutely founded that the detention is illegal.

In summary

Habeas Corpus is available to protect a person's freedom when it is unjustly restricted.

If you require further advice on this matter, Servicio Legal specializes in Criminal Law and can help you resolve your legal matters.

Contact us through our website and tell us about your situation.