Freedom is a fundamental right of all Colombians, the constitution itself in article 13 of the Constitution. article 13 states that we are all born free and equal before the law.
However, it is well known that this right can be revoked, by way of punishment, when a person (or a group of persons) commits criminal acts that put other members of the community at risk.
Although compliance with a process is required for a competent authority to deprive a person of his liberty, there are cases in which such process is not complied with or it is thought that it has not been complied with, and it is here when the affected person or his representative may invoke Habeas Corpus.
Since the 1991 Constitution, Habeas Corpus has been integrated as a mechanism that protects people’s freedom, being stipulated in Article 30 of the Constitution.
article 30
of the constitution:
“Whoever is deprived of his liberty, and believes to be illegally deprived, has the right to invoke before any judicial authority, at any time, by himself or through an interposed person, Habeas Corpus, which must be resolved within thirty-six hours.”
Later in 2006, Law 1095 of
law 1095
with the objective of regulating the aforementioned article, thus opening the law explaining, in article 1, that Habeas Corpus:
“…is a fundamental right and, at the same time, a constitutional action that protects personal liberty when someone is deprived of liberty in violation of constitutional or legal guarantees, or when this is illegally prolonged. This action may only be invoked or brought once and the pro homine principle shall be applied for its decision..”
When is a capture allowed?
The main objective of Habeas Corpus is to restore a person’s liberty, when it is foreseen that he/she has been deprived of it.
In order to know if an arrest or capture is properly made, we will explain the requirements to be able to make it:
A judge of the republic must provide a written arrest warrant stating the reason(s) for which the person (or group of persons) should be detained.
The agents, with the warrant in hand, will go to the person (or group of persons) and must read to him/her the express reasons in the warrant as to why he/she is being captured.
Once captured, he must be taken to a judge to legalize and formalize the arrest.
The police can detain a person when it is for flagrante delicto reasons, i.e.:
- When a person is caught committing a criminal act.
- Whether captured in pursuit or in response to a distress call.
- when a person is caught with evidence from which, it is inferred, they prevented a delinquent act.
If the detention was not made through the above mentioned procedures, the person, or a third party, may summon Habeas Corpus, to request the defense of his right to liberty.
If you have any doubts about the case, it is advisable to seek advice from an attorney.
advice of a lawyer.
.
Who and how is the Habeas Corpus petition filed?
This right may be invoked either by the affected person or by a third party, and may be invoked before any competent entity, at any time while the violation persists, and a response must be given within 36 hours.
Habeas Corpus is a mechanism that does not require formality or authentication, so it can be invoked both verbally and in writing, if it is a person representing the affected person who invokes the mechanism, he/she can do so without the need for power of attorney.
Regarding the information that must be provided, Article 4 of Law 1095 of 2006 states that it is required:
- The name of the person in whose favor the action is filed.
- The reasons for which the deprivation of their liberty is considered illegal or arbitrary.
- The date of confinement and the place where the person deprived of liberty is being held.
- If the name and position of the official who has ordered the deprivation of liberty of the person or persons in whose favor the action is being taken is known.
- The name, identity document and place of residence of the applicant.
- The affirmation, under oath; which shall be deemed to have been taken by the filing of the petition, that no other judge has taken cognizance of the Habeas Corpus petition or decided on the same.
The same article also states that not having all this information is not an impediment to not carrying out the Habeas Corpus, as long as the information provided is sufficient to initiate the process.
Decision and response time
Once the Habeas Corpus is filed and it reaches a competent judge, 36 hours are available to give a verdict.
During this time, the judge will study the case and meet with the parties to gather all the necessary information.
Upon completion of the study, the judge will rule in favor of finding for the defendant.
If the ruling is in favor of the accused, he must be released immediately; if, on the contrary, the ruling is against, the detention will continue, but a challenge may be made before a judge of higher competence, provided that it is considered absolutely grounded that the detention is illegal.
In a nutshell
Habeas Corpus is available to individuals to protect their liberty when it is unjustly restricted.
If you would like more advice on the subject, at Servicio Legal we specialize in criminal law and can help you resolve your legal issues.
.svg){kind=small}
.svg){kind=small}
