Before reporting: a practical Guide on what to do and how to file a criminal complaint properly

The complaint may be filed by the victim or any other person who becomes aware of the fact, and does not require formalities complex, it is enough to communicate clearly what happened. A demonstration (verbal, written, technical) with the competent authority that describe the punishable acts known, under oath. In summary, it's about giving news criminal to enable the research.

In the procedural field, the lack of complaint from a witness not a punishable offence. However, to make a false report (invent crimes or attributed to someone of a crime, knowing that didn't happen), is in itself a crime. The Criminal Code qualifies as slander or false testimony in such behaviour (arts. 220-221, 442 and concordant).

It is not a mandatory requirement to have a lawyer to file a criminal complaint, any person can go directly to the Prosecutor's office or a Police station and file a complaint. However, having legal counsel can bring important advantages: it helps to write the report with clarity, identify the articles applicable legal, and ensure that you include the essential elements and relevant evidence. In addition, when the case moves towards stages of a formal complaint or hearing, a lawyer (individual or ex officio) may accompany the complainant of their rights and responsibilities.

Not all crimes may be reported freely by any person. In some cases, the law requires that the victim (or his legal representative) who present a complaint to the start of the criminal action. These are the so-called crimes querellables or private action. In other words, if the fact is of this type, the Prosecution can not start an investigation just with a complaint filed by a third party: there must be the express will of the victim to move the process forward.

The Code of Criminal Procedure (art. 74) points out which are these offences. In general, these behaviors are considered to be less serious, or that primarily affect private interests, such as minor personal injury without sequelae, the defamation and slander, theft simple low amount, the scam of low amount, or certain cases of false documentary mild, among others. In these crimes, the complaint works as a kind of authorization that the victim grants for the State to investigate.

It is important to bear in mind that the complaint must be filed within six months of the commission of the fact (art. 73 CPP). If the victim does not do so within that period, the right to initiate criminal action expires, that is to say, you will lose the opportunity to open an investigation.

In contrast, the crimes are not querellables, also known as public action, may be reported at any time (while not prescribed by the criminal action), and the Prosecutor's office may investigate them even if the victim does not request or you change your mind later.

In summary, while the complaint may be filed by any person who has knowledge of a crime of public action, the lawsuit is a step that can only give the victim in the crime of action private or semi-private. That's why, before going on to denounce, it is advisable to seek advice to know if the fact is querellable, since it depends on that the research may or may not start.

And the special request, which is the pathway to initiate criminal proceedings for offences committed abroad under certain conditions (CPP art. 75). The process the Attorney General at the request of the authorities or the victims.

In general, there is not a fixed term only to file a criminal complaint to the Prosecutor's office, as many crimes are public action and the law does not impose a term for explicit, to denounce them. However, you can play against factors such as the prescription of the criminal action or not there is sufficient evidence with the passage of time.

The colombian Criminal Code provides that the offenses for which the penalty is not to deprivation of liberty prescribed in five years. In other cases, the limitation periods depend on the seriousness of the offence, the maximum penalty specified, or if the crime is ongoing or continuous.

In addition, for crimes querellables there is a limitation period: the complaint must be filed within six (6) months following the commission of the criminal act.

For the public crimes, there is not a fixed-term “expiration” to report (yes, there is the limitation of criminal prosecution general provided for in the Penal Code); however, the more time that passes, the more difficult it will be to gather evidence. Therefore, it is advisable to report as soon as possible. In any case, the complaint late does not result in a criminal penalty by itself, but may cause the Prosecution to file the case because of lack of progress or prescription of the action.

Once filed the complaint, you can't just “check out” because the criminal action is public. The prosecutor has the obligation to investigate in spite of the will of the complainant.

Only in the crimes querellables (private action) the victim who filed complaint may withdraw from the process. The CPP allows it: at any time prior to the end of the preparatory hearing, the complainant may manifest his decision not to continue. If the judge accepts the withdrawal is filed definitely the case against all investigated.

But this is different from the complaint: the complainant in a public process that is not an option.

In principle, you can learn a crime without revealing any personal data (e.g. via the internet or telephone lines). The law, however, warns that “the writings anonymous not provide evidence or data specific” it will just be archived. In practice, the Prosecution need verifiable data to investigate; therefore, if the complainant is not identified and does not provide bare minimum of evidence, the case will not move. It is recommended to at least give some form of contact or witnesses to the authority to be able to follow the investigation.

To report something knowing that it is a lie is a crime. As mentioned, the false complaint may constitute libel (CP art. 447 CP or art. 221 CP in the case of a false accusation) or even false testimony (art. 442 CP) if it is declared under oath. In any case, those who invent a crime or accused unjustly of another face penalties of fine or imprisonment according to the case.

In addition, the act of warning in a police station, makes it clear that it provides for criminal punishment for those who report falsely.

If the office of the Prosecutor reviews the case and check that there is not enough evidence (or evidence of the facts), it will ask for the file of the investigation. This means that the case is suspended indeterminadamente. The victim will be notified and the criminal prosecution will not proceed.

However, the file is not a judgment against the complainant, it simply reflects that failed to prove the offence. If later there are new elements, the Prosecution may re-open the investigation before the crime may prescribe. If it is finally precluye definitely, there will be no criminal penalty.