You are the victim of a crime: why you need your own lawyer (and not only the Fiscalía)

When someone is harmed by a crime —an injury, a theft, a fraud, an insult, a sexual assault— the first reaction is usually to wait. To wait for the Fiscalía to call, for the case to move forward, for the system to do its work. That silent, passive waiting is, very often, what causes the most harm: the Colombian criminal process does not favor the person who waits, but the person who puts facts, evidence and timing in order from the first day.

The law does not treat the victim as a mere witness or as a spectator of their own case. It recognizes concrete rights —truth, justice and reparation— and an active role at every stage of the criminal proceeding. But those rights are not exercised on their own: they require someone to assert them, on the terms and within the time limits that the Código de Procedimiento Penal requires.

This guide explains, from the perspective of the person who has suffered the crime, what rights you have, what decisions you face in the first days, why the Fiscalía is not the same as your lawyer and at what moments your representation can change the course of the case. It does not cover the position of the person under investigation or their defense (when to hire a criminal defense lawyer), nor how to choose a lawyer (how to choose a criminal defense lawyer); it focuses on you, the victim.

The essentials in one minute

If you have little time, hold on to these points and then come back to the section that interests you:

• You have a status of your own. You are not a witness in the case: the law recognizes your right to truth, to justice and to reparation, and your right to take part in every phase of the proceeding (art. 11 and art. 137 of Ley 906 de 2004).
• The Fiscalía is not your lawyer. It represents society and is required by the Constitution to investigate what favors the accused as well (art. 250 C.N.). Your particular interests are defended by your own lawyer.
• Time is running against you. In querellable offenses you have six months to lodge the querella (art. 73) and a mandatory prior conciliation (art. 522). Once the time limit has expired, the offense is no longer prosecuted.
• A complaint (denuncia) and a querella are not the same thing. The complaint brings the act to the attention of the authorities; the querella, in certain offenses, is the requirement without which the Fiscalía cannot act (art. 71 and art. 74).
• Reparation is not automatic. It is claimed in the incidente de reparación integral (the separate stage in which full reparation is determined), and only if you ask for it (art. 102), with a lapse period of its own (art. 106).
• At several stages the law requires a lawyer. From the preparatory hearing onward (art. 137) and, above all, if you decide to take on the action as an acusador privado (art. 549).

What follows develops each of these points with the applicable rule, an example in your situation and what a lawyer does in each case.

Being a victim is not being a spectator: truth, justice and reparation

The starting point is to understand that the Constitution and the law recognize a status of their own for the victim within the proceeding. The Corte Constitucional set this out clearly in Sentencia C-228 de 2002: the rights of the person who suffers a crime are not exhausted by financial compensation, but comprise three inseparable dimensions — truth (knowing what happened and who is responsible), justice (that the conduct does not go unpunished) and reparation (that the harm is repaired in full)—. That reading changed the way the criminal process is understood: the victim ceased to be seen as a mere party interested in money and became the holder of a right to have the truth known and justice done.

That status also rests on a basic constitutional principle: every person's right of access to the administration of justice is guaranteed (art. 229 of the Constitution). Access is not only being able to file a complaint: it is being able to intervene, to request, to object and to be heard. And the Constitution itself notes that the law states in which cases a person may act without a lawyer —which, read the other way around, means that in many others legal representation is not a luxury, but the condition for your voice to count.

An example. The vehicle you work with was stolen. Your immediate interest is to recover the property or its value, but the law recognizes something more: knowing how it happened, who took part and that the conduct does not go unpunished. If you focus only on the money, you may accept a quick agreement and give up, without knowing it, truth and justice. A lawyer who understands the three dimensions does not let you choose blindly: they show you what you gain and what you lose on each path.

Common mistake. Believing that "being a victim" is a label the judge grants at the end. It is not: the status of victim exists from the moment of the harm, and with it are born the rights you may exercise from the first day.

Who is a victim in the eyes of the law?

Before claiming rights it is worth knowing that you fit, in legal terms, into the category of victim. The law defines it broadly and does not make it conditional on the case ending well.

Two practical consequences follow from that definition. The first: you are a victim even if you do not know who did it. Many people do not file a complaint over a street theft or an online fraud because they "do not have the culprit"; the law does not require having one. The second: the harm must be direct. Not everyone who feels affected by the offense is a victim in the procedural sense; the victim is the person on whom the loss falls directly —the person injured, the person dispossessed, the person defamed— and, in certain cases, their family members.

An example. A company transferred money to a fraudulent account after a spoofed email. The company is a victim (direct financial harm), but so may be the natural person whose data was misappropriated, depending on the specific loss they suffer. When the victim is a company, the analysis has nuances of its own (the company as the victim of a crime); here we are talking about you as an individual.

What your lawyer does. They turn that "direct harm" into evidence: they identify what documented the act (the complaint, medical records, bank statements, contracts, expert reports) and build the bridge between the offense and your loss, which is exactly what the judge requires in order to recognize you as a victim in the proceeding.

The noticia criminal: the State's own motion, the complaint and the querella

Every criminal proceeding begins with a noticia criminal: the moment the authorities learn of the offense. How that report arrives matters, because not all offenses are investigated in the same way. The Constitution requires the Fiscalía to pursue the criminal action and to investigate the acts that come to its knowledge "by means of a complaint, a special petition, a querella or of its own motion", provided there are sufficient grounds (art. 250). Those four points of entry are not interchangeable.

• Offenses the State investigates of its own motion. Most of them. It is enough for the Fiscalía to learn of the act —through a complaint, a police report or any other means— for it to have a duty to investigate, regardless of the victim's wishes. Here you report, but the case does not depend on your "wanting" to go on.
• Querellable offenses. A specific group that the law reserves to the victim's initiative: without a querella, the Fiscalía cannot start the criminal action. Here you are not just one more witness: you are the one who switches the case on —or not—, and also the one who can switch it off by withdrawing.

The difference is practical: the complaint is the act by which you bring the facts to the attention of the authorities; the querella, in addition, is the condition without which certain offenses cannot be prosecuted. And not just anyone may lodge one: the law reserves that act to the querellante legítimo.

Confusing a complaint with a querella, or letting the moment to lodge one pass, can close the door of the proceeding before it begins. That is why the first job of the victim's lawyer is usually quiet but decisive: classifying the offense. Is it prosecuted by the State of its own motion, or is it querellable? What is the amount that determines whether the theft or the fraud requires a querella? Does the medical incapacity exceed sixty days or not? Everything else depends on that classification. Financial and computer offenses, for their part, have rules of their own that deserve separate treatment (corporate financial crimes, cybercrimes and Ley 1273).

The following table sums up the distinction that most confuses victims:

The clock is running: lapse of the querella and prior conciliation

In querellable offenses time works against the victim. The law sets a time limit for lodging the querella, and once that term expires the offense can in principle no longer be prosecuted.

Six months seem like enough, but they run out fast when the victim waits to see what happens. Every week of indecision is a week less to gather evidence, identify the person responsible and lodge a solid querella. The lapse rule does not forgive: it is one of the most frequent reasons why a well-founded case never gets investigated. The term runs from the commission of the act, not from the moment you "decide" to act, and the force majeure exception is narrow —it has to be proven, alleging it is not enough—.

There is a second filter specific to querellable offenses: conciliation operates as a procedural prerequisite. Before the criminal action is exercised, the matter goes through a conciliation hearing.

That moment is delicate. A badly calculated agreement can leave the harm unrepaired; and the provision's closing warning is harsh: if you fail to attend without justification, the law treats you as having withdrawn. Arriving at that hearing advised, with a figure you can support and terms you have thought through, is very different from improvising in front of the other party.

An example. A client owes you money on a check with insufficient funds and you want to file a complaint. Because the conduct is querellable, you will go to conciliation first. If you arrive without having calculated interest, losses or documentary support, you are likely to accept less than you are owed or, annoyed, not to attend —and with that absence lose the claim—. With preparation, conciliation stops being a trap and becomes an opportunity to collect quickly and well.

What your lawyer does. They check the six-month time limit before it expires, prepare the querella with proof of the harm and arrive at the conciliation with a numerical position they can defend. If the agreement is not in your interest, they protect your right to have the Fiscalía proceed.

Your lawyer is not the Fiscalía (and why that changes everything)

Here is the costliest misunderstanding: believing that the Fiscalía is the victim's lawyer. It is not. The Fiscalía represents society and exercises the criminal action on behalf of the State; its role is to investigate and prosecute, not to defend your particular interests. And there is a constitutional fact that shows this forcefully.

That objectivity is healthy for the system, but it explains why you need a voice of your own. When your interests and the Fiscalía's coincide, everything flows; when they do not —because the prosecutor gives priority to other cases, accepts a preacuerdo that gives you no reparation or asks for the preclusión—, the victim with no representation of their own is left at the mercy of someone else's pace. No one inside the proceeding has the exclusive duty of looking after your reparation… except your lawyer.

The Corte Constitucional, in Sentencia C-209 de 2007, clarified the scope of that participation in the adversarial system: the victim may act at every stage, with a larger role before and after the trial and in a more limited way during the oral trial, so as not to upset the equality of arms or turn into a second prosecutor. Translated into practice, there are moments —a request for a medida de aseguramiento (a precautionary measure, which may include pretrial detention), preclusión hearings, preacuerdos, the incidente de reparación— at which your lawyer can request, object and prove. If no one takes them up on your behalf, they simply pass you by.

An example. The prosecutor, in order to close the case quickly, offers the accused a preacuerdo with a reduced sentence in exchange for accepting the charges. That reduction does not give you back what you lost and you were not even consulted. With a lawyer, you are heard before it is approved: you can ask for the reparation to be tied to the agreement or challenge its terms before the judge. Without a lawyer, you find out when it is already done.

The acusador privado: when you take on the criminal action

In offenses of lesser gravity the law went even further: it allows the victim to take the helm. Since 2017 there has been the figure of the acusador privado, through which you, acting through your lawyer, directly take on the investigation and the prosecution that the Fiscalía normally handles. This did not come out of nowhere: the Constitution itself allows it.

The conversion of the criminal action from public to private is not available for every offense: it is authorized for conduct handled through the special abbreviated procedure —in essence, querellable offenses and others of lesser harmfulness—, and offenses against State property and the offense of domestic violence, for example, are excluded. Requesting the conversion falls to the same persons the law regards as querellantes legítimos.

That final detail sums up much of this article: the law itself recognizes that there are stages of the proceeding —and an entire route, that of the acusador privado— in which the victim, without a lawyer, simply cannot act.

An example. Someone breached a contract with you through maneuvers that amount to breach of trust, and the Fiscalía, overloaded, is not moving. Instead of waiting years, you can request the conversion and, as an acusador privado, drive the case with your lawyer at a pace you control. In exchange, you take on the burden of investigating and proving: that is why the law requires legal representation without exception.

How you establish yourself as a victim and what information you can demand

In order to exercise those rights, you first have to be recognized. The victim establishes their status before the judge by showing the direct harm suffered —with the complaint, the medical records, invoices, expert reports, contracts or any other proof of the loss—. Once that link is established, you stop being an entry in the case file and become an intervener, with a voice at the hearings.

In addition, the law requires the authorities to keep you informed. It is not a favor: it is a right, and exercising it makes the difference between following the case and finding out about everything too late.

Alongside this, art. 135 provides that the prosecutor inform the victim of their rights from the very moment they take part, including the possibility of formulating a claim for compensation. In practice, many victims never receive that information in full because they do not demand it and do not know that they may.

Driving the case forward means concrete things: submitting and requesting items of physical evidence, asking the prosecutor to carry out acts of investigation, opposing a request for preclusión, being heard before a preacuerdo is approved and requesting protection measures where there is risk. The diligent —and well-advised— victim keeps the case from being shelved for inactivity or from moving in a direction that leaves them without reparation. If the person who learns of the offense is not the victim but a third party, the rules on the complaint change (what to do if you learn of a crime).

What your lawyer does. They file the accreditation brief with proof of the harm, demand that you be notified of the hearings, make sure the information under art. 136 actually arrives and turn the "right to be heard" into concrete and timely interventions.

What your lawyer can ask for at each stage

The victim's participation is not equally intense throughout the proceeding. The Corte Constitucional clarified that it is broader before and after the trial, and more limited at the oral trial. Knowing what can be asked for at each moment avoids losing opportunities that do not come again.

This table is also a map of risks: each cell is a door that closes if it is not gone through in time and with someone who knows how. The preclusión no one was consulted about, the preacuerdo approved without hearing you, the incidente that was never requested: that is how well-founded cases are lost.

The incidente de reparación integral: how the harm is quantified and collected

The criminal conviction settles liability, but it does not automatically set how much you are owed in reparation. For that there is a procedure of its own: the incidente de reparación integral, where the harm caused by the offense is discussed and quantified.

Full reparation is not only money. It covers compensation for material damages —daño emergente and lucro cesante— and for moral damages, but also measures of satisfaction, apologies or guarantees of non-repetition, depending on the case. In the incidente your lawyer states the claim orally, supports it with evidence and may attempt a conciliation on the amount; if that conciliation succeeds, it is incorporated into the judgment. It is worth keeping in mind the different forms of harm:

Note two details in the provision that often prove costly. First, the incidente opens at the victim's request: if you do not ask for it —or do not ask properly and in time—, reparation may be left unresolved in the criminal courts, forcing you into a separate civil suit, longer and more expensive. Second, there is a deadline after which the request lapses.

An example. After a personal injury, there was a conviction. You celebrate and let your guard down. More than thirty days go by and the incidente was never requested: the criminal route to reparation is closed. An attentive lawyer files the request within the time limit, with the quantification ready, and does not let the criminal victory end without financial effect.

Protection measures and support for the victim

Filing a complaint sometimes carries risk: threats, harassment, pressure to withdraw. The law provided tools for this, although they are not triggered automatically. Within the criminal proceeding, the Fiscalía (Colombia's prosecution service) must adopt measures for the support of victims, guarantee their personal and family safety and protect them against publicity that attacks their privacy or dignity; and you may request, through the prosecutor, measures before the juez de control de garantías (the judge who oversees constitutional guarantees at the pre-trial stage).

Where the offense involves violence against women, there is an additional and faster route, which runs in parallel with the criminal proceeding. Ley 1257 de 2008 recognizes reinforced rights for victims of violence and allows protection measures to be requested before the comisario de familia (failing that, the juez civil municipal or juez promiscuo municipal).

The underlying point is the same on both routes: these measures usually depend on someone requesting them and supporting them. A lawyer who knows the route knows what to ask for, from which authority and with what evidentiary backing, and knows how to combine criminal protection with family-law protection when the case calls for it.

An example. After you file the complaint, the intimidating calls begin so that you will withdraw it. Instead of giving in, you may request protection measures within the proceeding (art. 137) and, where it involves domestic or gender-based violence, a protection measure before the comisario de familia. Documenting every threat —screenshots, witnesses, dates— is what gives the request its support.

What NOT to do if you are a victim

As important as knowing what to do is avoiding the mistakes that, time and again, sink well-founded cases:

• Do not wait "to see what happens." In querellable offenses (those that require a querella from the victim) the six-month term runs, as a general rule, from the commission of the offense —and only where proven force majeure or a fortuitous event kept you from learning of it, from the moment that impediment ceases (art. 73)—, not from the moment you “decide” to act.
• Do not confuse a complaint with a querella. Bringing the act to the authorities' attention is not always enough; in querellable offenses the querella must be lodged by the querellante legítimo (arts. 71 and 74).
• Do not miss the conciliation hearing without justification. Your absence is treated as withdrawal of the claim (art. 522).
• Do not sign agreements or settle amounts without advice. A badly agreed reparation is hard to undo, and it can close off the claim.
• Do not assume that the prosecutor "is your lawyer." The Fiscalía must be objective and must also investigate what favors the accused (art. 250 C.N.).
• Do not forget to request the incidente de reparación. It does not open by itself: it lapses thirty days after the conviction becomes final (arts. 102 and 106).
• Do not destroy or "tidy up" the original evidence. Keep the supporting records exactly as they are; handling them reduces their evidentiary value.
• Do not confront the aggressor on your own if there is risk. Activate the protection channels instead of exposing yourself.

Common myths

A number of beliefs circulate about the victim's role that are worth dismantling:

• "If I do not know who did it, I cannot file a complaint." False. The status of victim exists regardless of whether the perpetrator is identified (art. 132); filing a complaint is, often, what makes it possible to identify them.
• "The Fiscalía takes care of everything, I do not have to do anything." False. The Fiscalía investigates and prosecutes in the general interest; your particular interests —and your reparation— are driven by your lawyer (arts. 137 and 250 C.N.).
• "With the conviction I get paid automatically." False. Reparation is claimed and quantified in a separate incidente, at your request and with its own lapse period (arts. 102 and 106).
• "Conciliation is mandatory and I have to accept whatever they offer." Half true. In querellable offenses conciliation is a procedural prerequisite, but it does not require you to accept a bad agreement; if there is no settlement, the Fiscalía proceeds (art. 522).
• "As a victim I do not need a lawyer." It depends on the stage. To act from the preparatory hearing (audiencia preparatoria) onward, and always as an acusador privado (the victim who takes over the prosecution), the law requires legal representation (arts. 137 and 549).
• "Filing a complaint is pointless." False in legal terms: without a noticia criminal (the report that starts the case) no proceeding is possible, and the complaint triggers duties of information and protection in your favor (arts. 133 and 136).

Checklist for the first 72 hours

Early decisions shape everything that follows. Without improvising, these steps put the case in order from the start:

1. Preserve the evidence. Keep messages, emails, photographs, invoices, medical records, witness details and any other record. What is not documented today is hard to prove tomorrow.
2. Attend to what is urgent. If there are injuries, go to a medical facility and keep the medical records and the forensic medical report; if there is risk, activate the protection channels.
3. Put the facts in order. Write a clear chronology: what happened, when, where, who was involved and with what evidence. That account is the basis of a solid complaint.
4. Classify the offense. Find out whether the offense is one the State prosecutes of its own motion or one that is querellable and, if it is querellable, keep in mind the six-month time limit and the prior conciliation (arts. 73 and 522).
5. File the noticia criminal with the right authority. In person before the Fiscalía, at the URI (Unidades de Reacción Inmediata) or at the service points, or through the online channels available.
6. Demand the information you are owed. Ask them to tell you the procedure, the next steps and how to request protection (art. 136).
7. Get advice before negotiating. Do not accept agreements or sign conciliations without understanding what you are giving up. A badly agreed reparation is hard to undo.

Filing a complaint in time and in an orderly way does not guarantee a result, but it does protect your rights from the first day and avoids the mistakes that cannot be fixed later.

Your case deserves more than waiting

Being the victim of a crime does not condemn you to watch from the outside. Colombian law recognizes an active role for you —the right to truth, to justice and to reparation— and, at several stages, that role can only be exercised through a lawyer. Having your own representation does not replace the Fiscalía: it complements it and makes sure your interests are not pushed into the background.

At Cafore Abogados we accompany victims in putting facts, evidence and timing in order, and in deciding the most appropriate route for each case. If you are going through a situation like this, tell us what happened and we will guide you on the steps to follow. Write to us or call us at 313 8411825.

Laws and case law cited

• Art. 229 of the Constitución Política — guarantees every person's access to the administration of justice. Source
• Art. 250 of the Constitución Política — functions of the Fiscalía; duty to investigate both what favors and what incriminates the imputado; parágrafo 2, which allows the criminal action to be assigned to the victim. Source
• Art. 11 of the Código de Procedimiento Penal (Ley 906 de 2004) — victims' rights: access to justice, dignified treatment, protection, reparation, being heard and information. Source
• Art. 71 of the Código de Procedimiento Penal (Ley 906 de 2004) — defines the querellante legítimo: the victim, their legal representative or their heirs. Source
• Art. 73 of the Código de Procedimiento Penal (Ley 906 de 2004) — sets the lapse of the querella at six months. Source
• Art. 74 of the Código de Procedimiento Penal (Ley 906 de 2004) — lists which conduct requires a querella and the exceptions. Source
• Art. 76 of the Código de Procedimiento Penal (Ley 906 de 2004) — withdrawal of the querella. Source
• Arts. 102 to 106 of the Código de Procedimiento Penal (Ley 906 de 2004) — incidente de reparación integral: when it is available, procedure, hearing and thirty-day lapse. Source
• Art. 132 of the Código de Procedimiento Penal (Ley 906 de 2004) — defines who is a victim on the basis of direct harm. Source
• Arts. 133 and 134 of the Código de Procedimiento Penal (Ley 906 de 2004) — support, protection and indispensable measures for the victim. Source
• Arts. 135 and 136 of the Código de Procedimiento Penal (Ley 906 de 2004) — guarantee of communication and the victim's right to receive information. Source
• Art. 137 of the Código de Procedimiento Penal (Ley 906 de 2004) — the victim's intervention at every stage and the need for a lawyer. Source
• Art. 522 of the Código de Procedimiento Penal (Ley 906 de 2004) — conciliation as a procedural prerequisite in querellable offenses. Source
• Arts. 549 to 551 of the Código de Procedimiento Penal (added by Ley 1826 de 2017) — acusador privado, conversion of the criminal action and who may exercise it. Source
• Sentencia C-228 de 2002 — the victim's rights comprise truth, justice and reparation, not only financial compensation. Source
• Sentencia C-209 de 2007 — clarifies the scope of the victim's participation in the adversarial criminal justice system. Source
• Ley 1257 de 2008 — rights and protection measures in cases of violence against women. Source