Updated June 16, 2026 · Fabio Castro Forero

Criminal liability of officers and shareholders: a guide for executives

Criminal defence and preventive strategy for legal representatives, managers, shareholders and board members exposed to criminal liability for company decisions.

Category Criminal Law Updated June 16, 2026 Author Fabio Castro Forero

Criminal Law

Corporate criminal risk

Review your personal exposure before responding If a business decision has already brought a summons, a criminal complaint or pressure from shareholders, it is best to put roles, documents and strategy in order before improvising.

Corporate Criminal Law

Criminal liability of officers and shareholders: a guide for Colombian executives

In Colombia, companies do not go to prison. The ones who do are the people who take the decisions inside them. That principle, which sounds simple, has consequences of enormous weight for any officer, legal representative, board member or active shareholder: every significant business decision can turn into an individual criminal investigation.

This guide is written for Colombian executives who need to understand precisely when criminal liability arises, which articles of the Código Penal it rests on, which offenses trigger it most often and what they can do today to reduce their personal exposure. It is not an invitation to alarmism; it is a risk management tool.

The principle that changes everything: in Colombia the company is not criminally liable

Article 12 of the Código Penal is categorical: "Penalties may be imposed only for conduct carried out with culpability. Every form of strict liability is eradicated." That sentence has two practical consequences that every executive must be clear about.

The first: there is no automatic criminal liability. That the company caused harm is not enough to convict anyone. The Fiscalía must prove that a natural person, individually, acted with intent or negligence and that that conduct fits a statutory offense. The position does not create liability on its own: what creates it is the specific conduct of the person who holds it.

The second, equally important: legal entities —the SAS, the sociedad anónima, the limitada (Colombia's three usual company forms)— have no criminal liability under the Colombian legal system. The company may face administrative sanctions, fines, extinción de dominio over its assets, but it is not charged or convicted in criminal proceedings. The one who is liable is the natural person who took the decision, signed the contract, authorized the payment or allowed something to happen that they had a duty to prevent.

This, which sounds like protection for the executive, is in fact a warning: when something goes wrong, the Fiscalía's gaze does not stop at the company name. It looks for the signature, the email, the minutes and the person who had the authority to prevent it.

The governing ruleArticle 9 of the Código Penal provides that for conduct to be punishable it must fit a statutory definition, be unlawful and be culpable. Causation on its own is not enough for legal attribution. The three elements must concur: that the conduct fit a statutory offense described in the law (typicality); that it harm a legally protected interest without legal justification (unlawfulness); and that it be attributable to the individual through intent or negligence (culpability). Without all three, there is no offense.

The legal basis

The clause in article 29: the officer as principal in the company's offense

Article 29 of the Código Penal defines who is a principal in an offense. Its third paragraph contains the most important rule of Colombian corporate criminal law for officers.

What article 29, paragraph 3, says exactly

The text reads as follows: anyone who acts as a member or a body of representation, authorized or de facto, of a legal entity and carries out the punishable conduct is a principal, even though the special elements that ground the punishability of the respective offense are not present in that person, but are present in the legal entity in whose name they act.

In plain language: if an offense requires, in order to be made out, that the perpetrator be an entity with certain characteristics (for example, that it be a supervised financial institution), and the company has that characteristic but the manager, as a natural person, does not, the manager is liable all the same if it was the manager who carried out the conduct in the company's name. The special status moves from the company to the officer for the purposes of criminal liability.

Typical cases for understanding the clause

1The manager who approves a payment of doubtful origin. A SAS receives funds from a counterparty and its manager, knowing that the origin is not clear, authorizes bringing them into the business and gives them the appearance of accounting legality. The company is the one that appears in the records, but the person who took the decision was the manager. Under article 29, paragraph 3, the manager is the principal in the offense of money laundering (art. 323 CP), even though it is the company that "benefits" from the transaction.

2The representative who signs altered documents. A legal representative authorizes board minutes that do not reflect what was deliberated to be filed with a public body. The documents are in the company's name, but it was the representative who signed and used them. Forgery of a private document (art. 289 CP) falls on the representative, not on the company.

3The finance director who fails to apply controls in a supervised entity. In a cooperative carrying on savings and credit activities, the finance director knows of cash transactions that exceed the legal thresholds and fails to report them. The legal duty of control lies with the cooperative as an institution, but the one who failed to meet it was the director. Criminal liability is personal (art. 325 CP).

Why this matters beyond the formal position

The clause in article 29 does not distinguish between the person who holds the title and the person who exercises real power. If you take management decisions, approve budgets, sign significant contracts or instruct subordinates on sensitive transactions, you act as a body of the company for criminal-law purposes, regardless of what your business card says. Article 29 looks at what you did, not only at what you formally are.

Who is liable, and why

De jure officer and de facto officer: the same criminal exposure

Article 29 speaks of those who act as a body of representation that is "authorized or de facto". That conjunction is deliberate and has direct consequences for shareholders, majority shareholders and even outside advisers who exercise real influence over management.

What a de jure officer is

This is the person with a formal appointment: the registered manager, the legal representative filed with the Cámara de Comercio (the chamber of commerce, which keeps Colombia's business registry), the board member appointed in the minutes. Their criminal exposure is clear because their name appears in the documents, their signature on the contracts and their authorization in the records. If they take decisions that amount to an offense, the chain of causation between them and the conduct is easy to trace.

What a de facto officer is

This is the person who exercises management power without the corresponding formal appointment. It may be a majority shareholder who instructs the manager on which contracts to sign, a shareholder who gives direct orders to the finance team, or an outside adviser with unrestricted access to strategic decisions. What determines the status is not the paperwork but the reality of control.

Colombian criminal case law has recognized that de facto management creates the same exposure as formal management, precisely because article 29 of the Código Penal (Colombia's Criminal Code) opens the door to anyone who acts as a "de facto" body. A shareholder who never signed as legal representative but who took the real decision can be charged as a principal if the conduct was theirs.

The shareholder who "advises" without an appointment

There is a particular risk zone for shareholders who take an active part in the company's operations without a formal position: if their instructions are what actually drive the significant decisions, they may end up exposed as de facto officers. The defense of "I was only a shareholder" does not work when the emails, the chats and the minutes show that the strategic decisions were taken by that person.

Profile	Type of management	Level of criminal exposure	Decisive factor
Registered legal representative	De jure	High — their signature and authorization are traceable	Decisions they took within the scope of their position
Board member	De jure (collegiate)	Medium to high — depends on their vote and their knowledge	Voted in favor, abstained or recorded a dissenting vote
Active shareholder with no formal position	Potentially de facto	Medium — if there is evidence of actual orders	Emails, chats, statements by employees
Passive shareholder (capital only)	Does not manage	Low — unless they acted as a determinador (the person who orders the offense)	Whether they ordered or induced the officer's conduct
Finance director / CFO	De facto or by delegation	High in economic offenses and laundering	Control over flows, approvals and reports

The most frequent offenses

The five offenses that most affect Colombian officers

Not all offenses have the same frequency or the same risk profile in a business setting. These five account for the great majority of the criminal cases involving officers, legal representatives and executives in Colombia.

1. Money laundering — Article 323 of the Código Penal

Money laundering is the most serious offense and carries the heaviest penalty in the corporate criminal spectrum. Article 323 defines as punishable conduct anyone who acquires, safeguards, invests, transports, transforms, stores, keeps, holds in custody or administers assets whose indirect or direct origin lies in unlawful activities, or who gives them the appearance of legality. If the company is under family control, review the money laundering warning signs in family businesses.

The penalty is ten to thirty years' imprisonment and a fine of between one thousand and fifty thousand current monthly statutory minimum wages. It is the highest penalty range in this group.

Three aspects are critical to understanding how it applies in corporate settings. First: laundering is an autonomous offense in Colombia. No prior conviction for the underlying offense (drug trafficking, extortion, concierto para delinquir — criminal conspiracy) is required in order to charge laundering. The Fiscalía (the Prosecutor's Office) must show the link between the assets and the unlawful activity, but not anyone's conviction for that activity. Second: the unlawful activities that give rise to the predicate offense are broad and include, among others, drug trafficking, extortion, kidnapping for extortion, offenses against the financial system and against the public administration, and concierto para delinquir. Third: the offense applies even if the unlawful activities took place wholly or partly abroad.

In a corporate setting, the risk arises when an officer approves transactions with counterparties of doubtful origin, accepts cash payments without sufficient supporting documentation, books transactions at artificial prices or allows funds of unverified provenance to move through the company. The critical point is not always full knowledge: in some cases, a deliberate failure to check may be enough.

2. Forgery of a private document — Article 289 of the Código Penal

Article 289 provides that anyone who forges a private document capable of serving as evidence incurs, if they use it, imprisonment of sixteen to one hundred and eight months.

Two elements are indispensable: the forgery of the document and its actual use. Without use there is no completed offense. In a business setting, the documents at risk are the minutes of the board of directors or of the shareholders' meeting that do not reflect what was actually deliberated, powers of attorney granted to third parties with false content, contracts altered to change agreed terms, internal reports manipulated to conceal situations, and accounting or tax records that do not match reality.

A frequent mistake in practice is to assume that forging "internal" minutes has no criminal consequences because they are not a public document. Article 289 applies to private documents: board minutes, a contract between shareholders, a report to the statutory auditor. If the document is capable of serving as evidence —and almost any corporate document is— and it was altered and used, the statutory offense may be made out.

3. Aggravated criminal breach of trust (abuso de confianza calificado) — Article 250 of the Código Penal

Article 250 sets out the aggravated form of abuso de confianza, with a penalty of forty-eight to one hundred and eight months' imprisonment and a fine of forty to seven hundred and fifty monthly statutory minimum wages. It operates, among other circumstances, where the conduct is committed by abusing functions assigned, recognized or entrusted by a public authority, or over assets belonging to companies in which the State holds all or the greater part.

In the context of private-sector officers, the most relevant offense is abuso de confianza in its basic form (article 249), which penalizes the officer who appropriates or diverts, for their own benefit or that of a third party, assets entrusted to them. Diverting corporate funds, using company assets personally, or appropriating funds belonging to clients or shareholders are the most frequent forms. The starting point is always the trust placed in the position: the officer has access to the assets precisely because the company or the shareholders trust them.

4. Failure to apply controls — Article 325 of the Código Penal

This offense applies exclusively to supervised entities: financial institutions and savings and credit cooperatives supervised by the Superintendencia Financiera or the Superintendencia de Economía Solidaria (Colombia's financial-sector and cooperative-sector regulators). Article 325 penalizes the board member, legal representative, officer or employee of those entities who, in order to conceal or cover up the unlawful origin of the money, fails to apply the control mechanisms established for cash transactions.

The penalty is thirty-eight to one hundred and twenty-eight months' imprisonment and a substantial fine. What is notable is that the offense is made out by the conduct alone of failing to apply the control —it is not necessary for the money laundering to have been completed. For executives of financial-sector and cooperative-sector entities, rigorous compliance with SARLAFT (the money laundering and terrorist financing risk management system) and with transaction control systems is not only an administrative obligation: it is also a criminal-law barrier.

5. Testaferrato (lending one's name to hold assets for someone else) — Article 326 of the Código Penal

Article 326 penalizes anyone who lends their name to acquire assets with money coming from drug trafficking and related offenses. The penalty is especially severe: imprisonment of ninety-six to two hundred and seventy months (eight to twenty-two and a half years) and a fine of six hundred and sixty-six to fifty thousand monthly statutory minimum wages. A second scenario applies the same penalty where the money comes from kidnapping for extortion, extortion and related offenses.

In the business world, the risk of testaferrato arises when an officer or shareholder allows their name, the company's name or their assets to be used to give a legitimate appearance to assets of unlawful origin. It is not essential that the person received the unlawful money directly: it is enough that they lent their name so that the money could be turned into a "clean" asset.

Offense	Art. CP	Prison penalty	How it is made out in a corporate setting
Money laundering	323	10 to 30 years	Approving transactions with funds of doubtful origin, giving an appearance of legality to unlawful funds
Forgery of a private document	289	16 to 108 months	False board minutes, altered contracts, powers of attorney with false content and actual use of the document
Criminal breach of trust (aggravated)	250	48 to 108 months	Diversion of corporate funds, personal use of company assets, appropriation of shareholders' funds
Failure to apply controls	325	38 to 128 months	Executives of supervised entities who fail to apply SARLAFT controls to cash transactions
Testaferrato	326	96 to 270 months	Lending one's own name or the company's name to acquire assets with money from drug trafficking or related offenses

Shareholders and liability

The shareholder's liability: when a shareholder does end up criminally implicated

A shareholder who does not manage, does not represent the company and does not instruct the manager has low criminal exposure. But there are specific circumstances in which a shareholder —whatever their percentage holding— can be drawn into a criminal investigation. Article 30 of the Código Penal maps out those circumstances.

The rules on participants: determinadores and accomplices

Article 30 distinguishes two types of participant. The a determinador is whoever induces another to carry out the unlawful conduct: their penalty is the same as the one laid down for the principal. The an accomplice is whoever contributes to carrying out the conduct or provides subsequent help under a prior or concurrent agreement: their penalty is that of the corresponding offense reduced by between one sixth and one half.

The distinction matters. A shareholder who in a private meeting instructs the manager to sign a forged contract is not merely a collaborator: they are a determinador, and their penalty may be identical to that of the manager who carried out the act. By contrast, the shareholder who, once the offense has been committed, helps conceal documents knowing what has happened may be prosecuted as an accomplice, with a reduced but equally real penalty.

When a shareholder can become criminally implicated

1As a determinador (art. 30). The shareholder who orders, pressures or induces the manager to commit the offense. The order may be explicit or implicit: it is enough to show that it was their will that set the criminal conduct in motion. They will receive the same penalty as the principal who physically carried it out.

2As an accomplice (art. 30). The shareholder who helps carry out the offense or who, under a prior agreement, provides resources, access or information in order to commit it. Also anyone who, knowing of the offense, helps conceal its effects. The penalty is reduced by between one sixth and one half of that of the principal.

3As a de facto officer (art. 29, paragraph 3). If the shareholder has real control over operational decisions —even without a formal position— they can be treated as a de facto officer and be liable as a direct principal.

4As testaferrato (art. 326). If the shareholder lends their name or the company's name to acquire assets of unlawful origin, regardless of whether they are a minority holder or their participation appears passive.

5As a target of extinción de dominio (asset forfeiture). Although extinción de dominio is not a criminal penalty in the strict sense —it is an autonomous proceeding against the assets, as the Corte Constitucional held in judgment C-374 de 1997— the shareholder's assets can still be affected if it is shown that they were acquired with funds of unlawful origin, even if the shareholder was not criminally convicted. (C-374/1997)

The shareholder who does not act: when inaction can also be relevant

A less obvious but real scenario: the shareholder who knows an offense is being committed inside the company and does not act to prevent it. In Colombian criminal law, an omission gives rise to liability only where there is a legal duty to act. For most passive shareholders that duty does not exist. But for board members —who have duties of oversight over management— the position may be different: if they knew of an irregularity and voted in favor or abstained without recording a dissenting vote, their omission may be criminally relevant.

Reducing the risk from the inside

How to document the way the company is run in order to reduce the criminal risk profile

The best criminal defense for an officer does not begin at the audiencia de imputación (the hearing at which the Fiscalía formally notifies the charges) or in the criminal defense lawyer's office. It begins with the way things are documented, deliberated and decided in the company's day-to-day business.

Board minutes with real evidentiary value

Minutes of a board or shareholders' meeting that record only the outcome of the vote have little defensive value. The minutes that protect the officer show what information was available at the time of the decision, what questions were asked, whether there were opposing positions, how each member voted, whether anyone recorded a dissenting vote and what the basis of the decision adopted was. That traceability is what makes it possible, years later, to show that the decision was taken with sufficient information, in good faith and within the scope of the powers of the position.

The dissenting vote recorded in the minutes (salvamento de voto) is a particularly valuable instrument: a board member who votes against or abstains and puts their reasons on record in writing is in a radically different defensive position from someone who voted in favor in silence.

Reports to the statutory auditor

The statutory auditor is the most direct internal control channel in companies that are required to have one. An officer who reports risk situations to the statutory auditor, who answers the auditor's requests in writing and who keeps that correspondence, has evidence that they did not act covertly. Regular, formal communication with the statutory auditor is not only a legal obligation: it is also a piece of the future defense.

Written compliance policies and segregation of duties

A compliance policy that nobody reads is no defense. But an implemented policy —with documented training, records of its application and reporting channels that are actually used— can indeed show that the officer built a reasonable control environment. The same is true of segregation of duties: when no single person can complete a sensitive transaction alone without another validating it, the risk of deliberate wrongdoing by an individual falls, and if it does occur, the company can show that it had controls in operation.

In entities supervised by the Superfinanciera or the Supersolidaria, compliance with SARLAFT (Sistema de Administración del Riesgo de Lavado de Activos y Financiación del Terrorismo, the money laundering and terrorist financing risk management system) is also a legal requirement whose omission can trigger the statutory offense in article 325. Compliance here is not optional.

Traceability in sensitive transactions

Transactions involving significant amounts, foreign counterparties, cash payments, atypical contracts or ultimate beneficial owners that are hard to verify must be documented in more detail, not less. The officer who can show that they verified the counterparty's identity, that they requested supporting documents, that they applied a due diligence process and that they kept a record of that whole process is in a solid defensive position. The one who can show none of that has a great deal to explain to the Fiscalía.

Board minutes recording the information available, the deliberation, the vote and any dissenting votes.
Periodic written reports to the statutory auditor on risk situations.
Compliance policies that are implemented and have records of real application.
Segregation of duties in significant financial transactions.
Documented due diligence in transactions with high-risk counterparties.
Formal authorization from the board or the shareholders' meeting for decisions that exceed the legal representative's ordinary powers.
Orderly retention of emails, corporate chats, contracts and accounting records.

Two roles that cannot be confused

When to separate the corporate lawyer from the individual's criminal defense lawyer

One of the most frequent mistakes when a criminal investigation appears in a business setting is to assume that the company's lawyer also defends the officer under investigation. That confusion can be very costly.

The corporate lawyer represents the company, not the executive

The company's lawyer has the legal entity as its client: the SAS, the sociedad anónima, the company. Their duty of loyalty runs to the company, not to its executives individually. When a criminal investigation appears involving an officer, the interests of the company and those of the officer under investigation may coincide, but they may also diverge radically.

The company may have an interest in cooperating with the Fiscalía, in producing documents that explain what happened, in showing that it had internal controls and that the officer's behavior was individual and not institutional. The officer under investigation may have an interest in exactly the opposite: in not handing over certain documents, in not making a statement, in building a defense that calls into question the traceability of their conduct. If the same lawyer tries to serve both clients at once, they are in a conflict of interest.

The officer under investigation needs their own criminal defense lawyer

From the moment a natural person receives a summons from the Fiscalía, becomes an indiciado (a person under investigation who has not yet been formally charged) or is formally charged, they need a criminal defense lawyer whose only client is that person. That lawyer can review the documents the company plans to hand over and warn if any of them could harm their client. They can advise on the right not to make a statement. They can design a theory of the case that is consistent with the facts but builds the best defensive position for the individual.

Article 8 of the Código de Procedimiento Penal (Colombia's Criminal Procedure Code) guarantees the imputado (the person formally charged) the right to be assisted by a lawyer of their choice or a court-appointed one, not to be compelled to testify against themselves, to know the charges in sufficient detail and to have a reasonable time to prepare their defense. Those rights can be exercised effectively only if the lawyer defending them owes loyalty exclusively to the imputado.

Signs that the conflict is already present

The company is cooperating with the Fiscalía and handing over documents that implicate the officer under investigation.
Several executives are under investigation with positions that are potentially contradictory to one another.
The company has an interest in showing that the behavior was individual, not institutional.
A preacuerdo (a negotiated agreement with the Fiscalía) or an allanamiento a cargos (acceptance of the charges) is under consideration that could affect the position of one of those under investigation.
The shareholders or partners who control the company have interests different from those of the officer under investigation.

In any of those situations, the officer must have their own criminal defense lawyer before giving any statement, handing over any document or taking part in any conversation that could be used as evidence.

Diagnosis and prevention

Exposure table by position and criminal prevention checklist

An executive's level of criminal exposure does not depend only on their position: it depends on what decisions they take, what controls they have available and what documentation supports their conduct. This table and the checklist that follows it are starting points for assessing a specific situation.

Exposure table by position

Position	Level of criminal exposure	Typical offenses	Priority preventive measures	When to seek your own lawyer
Legal representative / Manager	High	Laundering (art. 323), forgery of a private doc. (art. 289), criminal breach of trust, testaferrato (art. 326)	Clear limits in the bylaws, authorization minutes, counterparty due diligence	On any summons, criminal complaint or request from the Fiscalía or an administrative authority
Board member	Medium-high	Laundering (art. 323) through the approval of transactions, document forgery	Vote with sufficient information, record a dissenting vote when in doubt, do not approve without documentation	When a decision they approved becomes the subject of an investigation
Finance director / CFO	High in economic offenses	Laundering (art. 323), failure to apply controls (art. 325) in supervised entities, falsification of accounting records	Documented transaction controls, SAGRILAFT in supervised entities, dual signature on significant transactions	When there is an investigation into financial transactions under their responsibility
Statutory auditor	Medium (by omission)	Disciplinary liability and possible criminal liability for failing to report serious irregularities	Opinions with explicit qualifications, written communications to management about risks	When the irregularity they did not report becomes the subject of an investigation
Active shareholder (with no formal position)	Variable — can be high	Determinador or accomplice (art. 30), de facto officer (art. 29), testaferrato (art. 326)	Do not give operational instructions without formal backing; keep the shareholder role separate from the executive role	When there are indications that their instructions are being investigated
Passive shareholder (capital only)	Low to medium	Testaferrato (art. 326) if they lent their name for unlawful assets	Verify the origin of the funds used to buy their holding; do not lend their name on behalf of third parties	On any investigation involving the company's assets

A 10-point checklist to reduce a Colombian officer's criminal risk

Limits in the bylaws by amount: The bylaws and the internal regulations define what the legal representative can approve alone and what requires prior authorization from the board or the shareholders' meeting.
Minutes with real deliberation: The board minutes reflect the information available, the questions asked, the individual votes and any dissenting votes recorded.
Counterparty due diligence: There is a documented process for verifying the identity of counterparties and the origin of their funds in significant or unusual transactions.
Formal communication with the statutory auditor: Risk situations are reported in writing to the statutory auditor, and the auditor's requests are answered in the same way.
Implemented compliance policy: There is a compliance policy with records of training, application and updating — not just an approved document with no follow-up.
Segregation of duties in financial transactions: No single person can authorize, execute and record a transaction of significant value alone without validation from another role.
Active internal reporting channel: There is a mechanism for employees and other personnel to report risks or irregularities without retaliation, and there is evidence that it works.
Document retention: Emails, contracts, accounting records and relevant communications are kept in an organized way and are not deleted when a dispute appears.
Separation of personal and corporate cash: There are no informal shareholder loans, personal expenses without supporting documentation, advances without a contract or withdrawals without documented approval.
Your own lawyer on any summons: No officer responds to a summons from the Fiscalía, an administrative authority or an opposing party in litigation without prior individual legal advice.

We answer your questions

Frequently asked questions about criminal law

Are you required to give a statement when the Fiscalía summons you for questioning?

Article 33 of the Constitución Política (Colombia's Constitution) guarantees that no one is required to testify against themselves. Under the adversarial system (Ley 906 de 2004), if you are an indiciado (a person under investigation against whom no formal charges have yet been brought), you have the right to remain silent without that being used as an inference against you. If you are summoned as a witness —not as an imputado— you do have an obligation to appear, although you may invoke the privilege against self-incrimination as to questions that would incriminate you. Consult a lawyer before attending so that you know your exact procedural position.

Can you go to the Fiscalía without a lawyer?

Technically you may appear without a lawyer, but articles 8 and 118 of Ley 906 de 2004 enshrine the right to professional legal defense as a guarantee that cannot be waived, from the moment any step is taken against you. Giving a statement without advice may compromise your procedural position even if you bear no criminal responsibility, because the way the questions are answered shapes the direction of the investigation. The prudent course is not to appear without first having the guidance of a criminal lawyer.

What is the difference between being a witness, an indiciado and an imputado?

Under Ley 906 de 2004, the witness is the person who has knowledge of the facts under investigation but is not a subject of the investigation. The indiciado is the person against whom there is evidentiary material that would link them as a possible perpetrator or accomplice, but without a formal imputación having yet been made. The imputado is the person already brought into the proceedings through the audiencia de imputación before the juez de control de garantías, from which moment they acquire all the rights of a defendant (art. 126 Ley 906). Each position entails different obligations and rights.

What should you do if the police or the Fiscalía arrive at your company without a court order?

Article 219 of Ley 906 de 2004 requires searches and inspections of real property to be carried out under a written order from the prosecutor, apart from the exceptions to the written-order requirement provided for in article 230 of the same law. If the officers do not produce an order, you may ask for it without obstructing the procedure. Identify the officers, record the time of entry and contact your lawyer immediately so that they can assess the legality of the operation and, if necessary, ask the judge to exclude the evidence obtained unlawfully.

Does resigning as manager or legal representative eliminate criminal liability?

No. Criminal liability arises at the moment of the conduct, not from the position. If the offense was committed while the person was legal representative or officer, a later resignation does not extinguish the liability. The Fiscalía can investigate and prosecute people who no longer hold the position if the conduct occurred during their tenure. What resignation can do, in some cases, is limit exposure going forward: someone who no longer holds the position cannot be liable for omissions occurring after they leave. But past facts remain prosecutable, and the limitation periods for the criminal action run from the completion of the offense, not from the departure from the position.

What happens after the audiencia de imputación?

After the imputación, the Fiscalía has a statutory period in which to file the indictment or to request the preclución, under article 175 of Ley 906 de 2004. If an indictment is filed, the case moves on to the indictment hearing, then to the preparatory hearing and then to the oral trial, where the Fiscalía must prove responsibility beyond all reasonable doubt.

What are my safeguards if I am arrested?

A person who is arrested has the right to be informed of the reasons for the arrest, to remain silent, to be brought before a Juez de Control de Garantías within the following 36 hours and to have professional legal defense from the moment of arrest, under article 28 of the Constitución and article 303 of Ley 906 de 2004. Failure to observe these time limits may affect the lawfulness of the arrest.

Can they search my home or intercept my communications?

A search of a dwelling and the interception of communications are carried out on the prosecutor's order, subject to a later review of legality before the Juez de Control de Garantías (art. 237), apart from the situations of flagrancia (being caught in the act) expressly provided for by law, under articles 219 and 235 of Ley 906 de 2004. Evidence obtained in breach of fundamental guarantees is void as a matter of law and cannot be used in the proceeding.

What options are there for obtaining release during the proceedings?

Where a custodial precautionary measure is in place, defense counsel may request its revocation or replacement when the circumstances that justified it change, under article 318 of Ley 906 de 2004. Release may also be requested for expiry of the statutory time limits when the Fiscalía exceeds the periods laid down for each stage of the proceedings.

How does the adversarial criminal justice system work in Colombia?

Ley 906 de 2004 adopted the adversarial system, which separates the functions of investigation and prosecution (in the hands of the Fiscalía) from those of adjudication (in the hands of the judges). The process follows the stages of preliminary inquiry, formulation of the imputación, filing of the written indictment (escrito de acusación), preparatory hearing and oral trial with the taking of evidence. The principle of contradiction allows the defense to challenge all the prosecution evidence in open court, which calls for an active lawyer from the outset.

What is pretrial detention and when does it apply?

Pretrial detention is a precautionary measure that temporarily deprives the imputado of liberty in order to protect the community, secure appearance at the proceedings or prevent obstruction of justice, under article 308 of Ley 906 de 2004. It requires an application by the Fiscalía to the juez de control de garantías, who must verify the requirements of reasonable inference of authorship, necessity of the measure and proportionality. The defense may request its replacement by a non-custodial measure by showing that those purposes are met with it.

What is a preacuerdo (a negotiated agreement with the Fiscalía) or an allanamiento a cargos, and when is it advisable?

Allanamiento a cargos (art. 288 Ley 906 de 2004) and preacuerdos (arts. 348 to 354) are mechanisms for the early termination of the proceedings in which the defendant admits responsibility in exchange for a sentence reduction that can reach 50 % where the acceptance is early. They are advisable where the prosecution evidence is solid, the sentence expected at trial is high and the reduction obtained significantly improves the situation. They do, however, entail waiving the right to a trial; a careful legal analysis of the available evidence is indispensable before accepting them.

Can a convicted person obtain substitute penalties or subrogados penales (alternatives to imprisonment)?

Yes. The Código Penal (Ley 599 de 2000, Colombia's Criminal Code) provides for alternatives such as the conditional suspension of the execution of the sentence (art. 63) and conditional release (art. 64), available according to the length of the sentence, the convicted person's record and the prognosis of non-reoffending. Some offenses expressly exclude these benefits (for example, those listed in art. 68A CP). Ley 1709 de 2014 introduced adjustments regarding prisons and substitute measures, so the analysis of each case requires checking the rule in force at the time of the facts.

Can the statutory auditor also be charged criminally?

Yes, although the logic differs from that applying to the officer. The statutory auditor has legal duties of control and oversight over the company's accounting and its operations. If, in performing those functions, they deliberately fail to report a serious irregularity they knew about, or if they certify financial statements they know to be false, they may be drawn into criminal proceedings. Their exposure is mainly for failure to perform duties and, in serious cases, for connivance with management in criminal operations. The fact that their role is one of control and not of execution reduces exposure in offenses of commission, but it does not eliminate liability where the control was part of their legal duty and they deliberately failed to exercise it.

Can the company pay for the criminal defense of the officer under investigation?

It depends on the bylaws, on the internal regulations and on the decision of the governing bodies. Some corporate structures have indemnification policies or policies for paying the defense costs of executives investigated over acts performed in the exercise of their functions. But that decision is not automatic and it has limits: if the criminal investigation concludes that the executive acted for their personal benefit and to the company's detriment, the company is under no obligation to fund their defense and may even have an interest in a conviction. That is why it is essential for the officer to have their own lawyer from the outset, with loyalty exclusively to them, without depending on the company approving or funding that representation.

How long can criminal proceedings last?

Ley 906 de 2004 sets maximum time limits for each stage, but the actual duration depends on the complexity of the case, the workload of the judicial office and the requests made by the parties. The expiry of certain time limits can produce procedural consequences favorable to the defense, such as the release of a person held in custody because of delay.

What is the presumption of innocence and how does it protect me?

Article 29 of the Constitución Política provides that every person is presumed innocent until judicially declared guilty. This means that the burden of proof rests exclusively on the Fiscalía: if it fails to prove responsibility beyond all reasonable doubt, the judge must acquit.

What is a medida de aseguramiento and when may it be imposed?

The medida de aseguramiento is a restriction on the imputado's liberty during the proceedings, which may consist of pretrial detention in a prison facility or of measures that do not deprive the person of liberty, under article 307 of Ley 906 de 2004. Imposing it requires the Juez de Control de Garantías to verify a reasonable inference of perpetration and the need for the measure in order to protect the community, the victim or the proceedings.

What is preclución (early termination of the case for lack of merit) and how can it benefit me?

Preclución, governed by article 331 of Ley 906 de 2004, is the early termination of the proceedings when the Fiscalía or the defense shows that there is no merit in continuing the investigation, on grounds such as the conduct not fitting any offense, the absence of responsibility or the extinction of the criminal action. A preclución that is granted produces the effects of res judicata in your favor.

When is a company's legal representative criminally liable?

The legal representative is criminally liable when, in the exercise of their functions or on behalf of the company, they carry out or omit conduct that falls within offenses in the Colombian Código Penal, such as tax fraud (arts. 402 and 434A CP), money laundering (art. 323 CP) or administración desleal (disloyal management by a company director, art. 250B CP). Criminal liability is personal and non-transferable: it cannot be assumed or paid by the company, and it coexists with the civil and administrative liability arising from the same facts. Regulatory compliance monitoring significantly reduces the risk of criminal exposure.

What is administración desleal and how does it differ from abuso de confianza (breach of trust)?

Administración desleal, defined in article 250B of the Código Penal (introduced by art. 17 of Ley 1474 de 2011), punishes the manager or director who, for their own benefit or that of a third party, causes harm to the company or its partners through acts or contracts. It differs from abuso de confianza (art. 249 CP) in that the latter concerns movable property handed over for safekeeping, whereas the former bears on the management of the company. Both offenses may concur in a single course of conduct if the manager also appropriates the company's assets.

What is money laundering and what are the penalties?

Money laundering is defined in article 323 of the Código Penal (as amended by Ley 1762 de 2015) and consists of acquiring, safeguarding, investing, transporting or converting assets derived from criminal activity in order to conceal their unlawful origin. The penalty ranges from 10 to 30 years' imprisonment and a fine of 1,000 to 50,000 monthly statutory minimum wages. The UIAF (Unidad de Información y Análisis Financiero, Colombia's financial intelligence unit) is the body that centralizes reports of suspicious transactions that may give rise to criminal investigations. Employees and directors must comply with the anti-money-laundering systems (SARLAFT) required by the Superintendencia Financiera.

Can a company be criminally convicted in Colombia?

No. In Colombia legal entities are not criminally convicted, although they do face sanctions. Ley 1778 de 2016, supplemented by Decreto 1498 de 2017, establishes a regime of administrative liability of legal entities for acts of transnational bribery. Moreover, Ley 2195 de 2022 (which amended article 34 of Ley 1474 de 2011) extended the administrative penalty liability of legal entities before the Superintendencia de Sociedades (Colombia's corporate regulator) to other conduct, such as offenses against the public administration, the environment and the economic and social order. Although the Colombian criminal regime punishes mainly natural persons, that statute empowers the Superintendencia de Sociedades to impose fines, disqualifications and other measures on companies. In addition, Ley 906 de 2004 provides for the suspension and cancellation of legal personality where the legal entity has engaged wholly or partly in criminal activities (art. 91 CPP). Exposure varies according to the regulated sector; having an ethics and compliance program can be a mitigating factor.

What if the mistake was the accountant's and not the officer's?

A defense based on the accountant's mistake may be valid, but it has to be built carefully. Article 12 of the Código Penal prohibits strict liability: it is not enough that the result occurred; it must be proved that the officer acted with culpability. If the accountant made a genuine mistake, without instructions from the officer and without the officer being reasonably able to detect it with the controls available, that circumstance may exclude the executive's criminal liability. But if the officer instructed the accountant, if they knew of the irregularity or if they had controls that would have allowed them to detect it and did not use them, the defense weakens. The practical rule is not to blame the accountant before reviewing what the duties of the position actually were: what information was available, what controls existed and what instructions were given.

Does the offense of money laundering require knowing exactly where the unlawful money comes from?

Not necessarily. The statutory offense in article 323 of the Código Penal may be made out even if the officer does not know precisely what the underlying offense was, provided they acted knowing that the assets were of unlawful origin or deliberately failed to inform themselves about their provenance when they had a duty to do so. Criminal case law has accepted the figure of dolo eventual (indirect intent): a person who assumes the risk that the funds are of unlawful origin and goes ahead all the same may be liable as if they had acted with direct intent. That makes laundering one of the offenses calling for the greatest care from officers who handle transactions with counterparties whose financial profile has not been sufficiently verified.

What does a preacuerdo or an allanamiento a cargos involve?

Allanamiento a cargos and preacuerdos, governed by articles 348 to 354 of Ley 906 de 2004, allow the defendant to accept responsibility in exchange for a sentence reduction or for less serious charges. Accepting a preacuerdo means giving up the oral trial and the possibility of an acquittal, so the decision must be taken with specialized legal advice that assesses how solid the evidentiary material is.

Do I have the right to know the evidence against me before the trial?

Yes. Evidence disclosure, governed by articles 337, 344 and 346 of Ley 906 de 2004, requires the Fiscalía to reveal the evidentiary material and physical evidence supporting the indictment. This disclosure is bilateral and allows the defense to examine it, challenge it and prepare its counterarguments before the preparatory hearing.

Can the defense gather its own evidence during the investigation?

Yes. Ley 906 de 2004 recognizes defense investigation as an autonomous power: defense counsel may conduct interviews, gather documents, engage private investigators and request information relevant to challenging the Fiscalía's theory of the case. Having your own evidence substantially strengthens your procedural position.

Is it possible to obtain a suspended sentence or an alternative penalty?

The Código Penal (Ley 599 de 2000) and Ley 906 de 2004 provide for subrogados penales such as the conditional suspension of the execution of the sentence and conditional release, as well as house arrest, provided the objective and subjective requirements set by law are met. The viability of these measures depends on the offense, the sentence that may be imposed and the convicted person's record.

What is extinción de dominio and how does it differ from decomiso (confiscation)?

Extinción de dominio, governed by Ley 1708 de 2014 (Código de Extinción de Dominio), is an autonomous constitutional action, real in nature and patrimonial in character, which declares the loss of the right of ownership over assets linked to unlawful activities, without any prior criminal conviction being necessary. It differs from decomiso (art. 100 CP) in that the latter is an ancillary consequence of a judgment of conviction, whereas extinción operates in a separate proceeding before the Fiscalía and the extinción de dominio judges.

Which assets can extinción de dominio reach?

Under article 16 of Ley 1708 de 2014, the action reaches assets acquired through unlawful enrichment to the detriment of the Public Treasury or with serious damage to public morals, assets used as a means of carrying out unlawful activities, assets deriving from those activities, and assets lawfully mixed with others. The action may extend to third parties' assets where it is shown that the holder knew of their unlawful origin or use. The grounds are exhaustive and are interpreted restrictively in favor of the rights of the person affected.

How can a third party in good faith show that they did not know the origin of the assets?

Articles 3 and 7 of Ley 1708 de 2014 recognize the rights of third parties acting in buena fe exenta de culpa (good faith free of fault), who may take part in the proceeding and assert rights in rem over the assets targeted by the action. To establish buena fe exenta de culpa, the third party must show that they took every reasonable precaution when acquiring or receiving the asset —such as verifying the seller's identity, the market price and the lawful origin of the funds— and that there are no circumstances that ought to have aroused their suspicion. Documentary evidence (deeds, registry records, bank flows) is fundamental in these proceedings.

Can extinción de dominio be suspended while the proceedings are under way?

Yes. Ley 1708 de 2014 provides for precautionary measures such as the suspension of the power to dispose of the assets (arts. 87 et seq.), which prevents them from being transferred or encumbered during the proceedings. However, the affected party may request the revocation of the precautionary measures if they show that the assets are not linked to any of the statutory grounds. In addition, they may appoint a provisional administrator of the assets in order to prevent their deterioration or loss of value while the proceedings are resolved. Specialized legal assistance from the very first moment is decisive in protecting the estate.

Can a shareholder order the manager to commit an offense and not be criminally liable?

No. Article 30 of the Código Penal provides that the determinador —the person who induces another to carry out the unlawful conduct— incurs the same penalty laid down for the offense. A shareholder who orders the manager to forge a document, to approve a payment of doubtful origin or to omit a legal control is not a third party outside the offense: they are its determinador, and their criminal liability is the same as that of the manager who carried it out. The idea that "I was only the one who gave the order" is not a defense in Colombian criminal law; it is, precisely, the description of the determinador.

What are the stages of criminal proceedings in Colombia?

Adversarial criminal proceedings, governed by Ley 906 de 2004, comprise the preliminary investigation, the imputación of charges before the Juez de Control de Garantías, the preclución (judicial dismissal of the case) or the indictment, the preparatory hearing and the oral trial. Each stage has procedural terms and requirements that determine the validity of what has been done and the defense strategy available to you.

Do I have the right to remain silent if I am summoned by the Fiscalía?

Yes. Article 33 of the Constitución Política enshrines the right against self-incrimination: no one is required to testify against themselves. Before giving any statement to the Fiscalía or the Policía Judicial (the investigative police), you can and should consult your defense lawyer to determine whether giving a statement or remaining silent is the better course in your situation.

What can the Fiscalía do during the investigation without a court order?

The Fiscalía may carry out investigative acts that do not entail a restriction of fundamental rights without prior judicial authorization, such as interviews, inspection of public places and requests for information from public and private entities, under article 213 of Ley 906 de 2004. Where the acts affect rights such as privacy, liberty or the home, an order from the Juez de Control de Garantías is required.

When should I hire a criminal defense lawyer?

The most advisable course is to have a specialized lawyer from the first contact with the Fiscalía or the Policía Judicial, even before giving any statement. A timely professional defense can prevent steps that later harm your procedural position and makes it possible to plan the strategy from the start of the investigation, when the options are broader.

To go deeper

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Guides prepared by our criminal law team so that you understand your options before acting.

Interrogatorio en Fiscalía: 7 pasos urgentes para protegerte

Questioning at the Fiscalía: 7 urgent steps

What you need to know and do before answering any question at the Fiscalía.

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Responsabilidad penal del representante legal: 7 pasos clave

Criminal liability of the legal representative

Seven key steps to protect your legal position as a director or manager.

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Extinción de dominio y tercero de buena fe: 7 pruebas clave

Extinción de dominio and the third party in good faith

Seven key pieces of evidence to defend the lawful ownership of your assets before the Fiscalía.

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Criminal liability of officers and shareholders: a guide for executives

Criminal liability of officers and shareholders: a guide for Colombian executives

The principle that changes everything: in Colombia the company is not criminally liable

The clause in article 29: the officer as principal in the company's offense

What article 29, paragraph 3, says exactly

Typical cases for understanding the clause

Why this matters beyond the formal position

De jure officer and de facto officer: the same criminal exposure

What a de jure officer is

What a de facto officer is

The shareholder who "advises" without an appointment

The five offenses that most affect Colombian officers

1. Money laundering — Article 323 of the Código Penal

2. Forgery of a private document — Article 289 of the Código Penal

3. Aggravated criminal breach of trust (abuso de confianza calificado) — Article 250 of the Código Penal

4. Failure to apply controls — Article 325 of the Código Penal

5. Testaferrato (lending one's name to hold assets for someone else) — Article 326 of the Código Penal

The shareholder's liability: when a shareholder does end up criminally implicated

The rules on participants: determinadores and accomplices

When a shareholder can become criminally implicated

The shareholder who does not act: when inaction can also be relevant

How to document the way the company is run in order to reduce the criminal risk profile

Board minutes with real evidentiary value

Reports to the statutory auditor

Written compliance policies and segregation of duties

Traceability in sensitive transactions

When to separate the corporate lawyer from the individual's criminal defense lawyer

The corporate lawyer represents the company, not the executive

The officer under investigation needs their own criminal defense lawyer

Signs that the conflict is already present

Exposure table by position and criminal prevention checklist

Exposure table by position

A 10-point checklist to reduce a Colombian officer's criminal risk

Frequently asked questions about criminal law

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Resolve your criminal law situation with professional support

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