5. Prosecutorial considerations
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5. Prosecutorial considerations Start Comparison
5.1 Police procedures

5.1.1 When do the police get involved in domestic disputes or legal actions?

The police become involved in domestic violence upon being made aware of it. In these cases, police authorities will give the victim of domestic abuse all the necessary help to prevent the repetition of these events, to remedy the physical and psychological consequences that have been caused and to avoid retaliation for such acts. In particular, they will take the following measures:

  1. Immediately take the victim to the nearest healthcare center, even if the injuries are not visible.
  2. Accompany the victim to a safe place or to their home for the removal of personal belongings if it is deemed necessary for their safety.
  3. Advise the victim on the preservation of evidence of acts of violence.
  4. Provide pertinent information on the rights of the victim and on the government and private services available to victims of abuse.[16]
When the victim of domestic abuse is a girl or teenager (woman), the police officers attending the situation are from a specialized arm of the police in charge of children whose actions are supervised by the public defender.[17]
5.1.2 What circumstances effect law firm involvement?
The defendant will be represented by an attorney either hired by them or assigned by the government if they have no funds to pay for one. The victim does not need an attorney to file the criminal complaint, but if they want to actively participate during the criminal procedure, they must be represented by an attorney, at least for the evidentiary hearing.[18]
5.2 Standard of proof

5.2.1 Is proof required by any legal means?

Yes, proof is required to prosecute and condemn an individual accused of committing a crime for domestic violence. For such purposes, the prosecutor must collect all necessary evidence in order to file a claim against the aggressor before a criminal judge.

There are no required means of evidence to demonstrate domestic violence. The prosecutor may use whatever object, document, testimony, video, etc. he or she considers pertinent to demonstrate that the crime has been committed.

There are no special laws or requirements specifically mentioned for domestic violence.
5.2.2 Are there any requirements regarding evidence and documents?

Any evidence must have been legally obtained and follow the chain of custody for its protection. Other than that, no additional requirements are currently in place.[19]

There is, however, specific regulation as to the testimonies of children and teenagers acting as witnesses in a domestic violence proceeding, as discussed below.
5.2.3 Is proof "beyond a reasonable doubt" required?
Yes, proof beyond reasonable doubt is required.[20]
5.2.4 Is the standard of proof different for ex parte orders?
Yes, the standard of proof changes for ex parte orders. Proof of reasonable doubt is required for ex parte orders, whereas the general standard test is beyond reasonable doubt.[21]
5.3 Affirmative defenses

5.3.1 Are affirmative defenses available to the accused?

The following affirmative defenses are available for any person accused of having committed any crime.[22] There are no exceptions or specific regulations for domestic violence:

  1. fortuitous events or acts of god (force majeure)
  2.  conduct with the victim's consent
  3. conduct carried out in strict compliance with a legal duty
  4. conduct carried out in compliance with a legitimate order issued by a competent authority that meets legal formalities. Due obedience will not be recognized when dealing with crimes of genocide, enforced disappearance and torture.
  5. conduct carried out in the legitimate exercise of a right, a lawful activity or a public office
  6. conduct carried out to defend a personal or other right against unjust current or imminent aggression, provided that the defense is proportionate to the aggression. Self-defense is presumed in those who reject the stranger who, improperly, tries to penetrate or has penetrated their room or immediate dependencies.
  7. conduct based on a need to protect a right of their own or that of others from current or imminent danger, unavoidable otherwise, that the agent has not intentionally or recklessly caused and does not have the legal duty to face
  8. conduct carried out under insuperable external coercion
  9. conduct driven by insurmountable fear
  10. conduct carried out under invincible error
5.3.2 Is willful intent required?
N/A
5.3.3 Are false accusations punishable for the victim?
Yes, falsely accusing someone of committing a crime has a penalty of 16 to 72 months' imprisonment and a fine of USD 2,800 up to 13.33 to 1,500 times the current legal monthly minimum wages.[23]
5.3.4 How is consent discussed in the law?
N/A
5.3.5 Is self-defense or insanity a defense?
Yes. Please refer to the section on "affirmative defenses."
5.4 Witness status

5.4.1 What is a witness's duty to testify honestly and completely?
In accordance with Articles 383 and 389 of the Criminal Prosecutorial Code, every citizen is obliged to testify under oath when required. Even though in Colombia good faith is presumed, the oath guarantees that the witness's statements are truthful and complete. If the witness fails to testify honestly and completely under oath they will be subject to criminal sanctions.
5.4.2 Who may abstain from testifying in certain situations?

According to Article 33 of the political constitution, no one may be forced to testify against himself or herself, or his or her spouse, permanent companion or kin to the fourth level of consanguinity, affinity two ranks removed or one rank removed in civil law.

Also, the following are exceptions to the duty to testify: a) a lawyer with their client; b) a doctor with their patient; c) a psychiatrist, psychologist or therapist with their patient; d) a social worker with the interviewee; e) a cleric with their parishioner; f) a public accountant with their client; g) a journalist with their source; and h) an investigator with the informant.
5.4.3 What potential "excuses" can a witness raise to refuse to testify in a domestic violence action?
In domestic violence actions, witnesses are usually family members, so they can invoke their constitutional right of not being forced to testify against their spouse, permanent companion or kin to the fourth level of consanguinity, affinity two ranks removed or one rank removed in civil law.
5.4.4 What is the impact of domestic violence on witnesses who are children?
N/A
5.4.5 Can children be called upon to testify?

Yes, children can be called upon to testify if the following conditions are satisfied:[24]

  1. Children under the age of 12 will not be sworn in and they must be assisted by their legal representative or by an elderly relative. The judge may also hold the testimony outside of the courtroom, but always in the presence of the parties.
  2. The statement of the minor may only be taken by the family defender with a questionnaire previously sent by the prosecutor or the judge. The public defender will only ask questions that do not contravene the child's best interest.
  3. In exceptional circumstances, the judge may intervene in the questioning of the child or adolescent to ensure that they answer the question that has been asked and do so clearly and precisely. The interrogation may take place outside the audience and in the presence of the public family defender, always respecting their prevailing rights.
  4. The same procedure will be adopted for statements and interviews that must be rendered before the judicial police and the prosecutor during the stages of investigation or preliminary inquiry.
  5. At the judge's discretion, testimony may be practiced through audio-video communication, in which case the physical presence of the child or adolescent will not be necessary.
5.4.6 What is the effect of a child victim on the charges against the offender?

The following are the effects of a child victim on the charges against the offender:[25]

  1. The offender's sentence will be increased by 75%.[26]
  2. Children receive priority in the proceedings, evidence collection, actions and decisions made in the process.
  3. Parents, legal representatives or the people with whom the minor lives will be summoned, when they are not the aggressors, to assist the minor in claiming their rights. In the absence of legal representatives of the minor or if representatives are involved as perpetrators or participants in the crime, the family public defender will be informed and take measures to reestablish and guarantee the minor's rights.
  4. Special attention will be paid in order to sanction the offender and to repair and reestablish the violated rights of the child victim.
  5. The judicial authority must automatically, or by request, order the practice of precautionary measures authorized by law to ensure payment of damages and compensation.
  6. Special care will be taken regarding processes that end with conciliation, withdrawal or full compensation to protect the minor's rights from being infringed.
  7. The judicial authority will refrain from applying the principle of discretionary prosecution, suspended sentences or house arrest (when the accused is a member of the family group) when children or adolescents are the victims of the crime, unless they were fully economically compensated.
  8. The judicial authority will pay special attention to ensure that the opinion and rights of the children, in all proceedings, are taken into account. It must also order special measures to guarantee the safety of children and adolescent victims and/or witnesses of crimes and their families, when considered necessary.
  9. Children and adolescent victims of the crimes, as well as their parents and legal representatives or the people with whom they live, will be informed and guided about the process, the results of the investigations and how to claim their rights.
  10. The judicial authority must ensure that proceedings involving a child or adolescent are free from pressure or intimidation.
5.5 Penalties and sentencing; penalty enhancements

5.5.1 What are the penalties and sentencing laws for first-time domestic violence offenses?

In criminal matters

The crime of domestic violence has a sentence of four to eight years in prison, which is increased by 75% when the victim is a woman, a minor, a senior citizen or a person in a state of vulnerability. Additionally, the offender will not be able to see the victim and/or their family during the length of the sentence and for one additional year after release. The crime of domestic violence in Colombia is subsidiary, which means that it only applies when the perpetrator does not commit a crime punishable by a greater penalty (Article 229 of the Criminal Code).

In civil matters

At the request of the applicant, family commissioners or family judges may issue protection orders, in which they will order the aggressor to refrain from carrying out the conduct that is the subject of the complaint or any other similar action against the offended person or another member of the family group.[27]
5.5.2 Are there criminal penalties?

Yes. However, offenders who commit a new crime against the family nucleus within 10 years of a previous conviction will be sentenced to the maximum possible penalty within the scope of the sentencing guidelines.

In the event that the perpetrator commits a crime with a greater penalty, they will be prosecuted and possibly convicted for the more serious offense. Feminicide (Article 104A of the Criminal Code), criminal offenses such as bodily injuries (Articles 111-121 of the Criminal Code), bodily injuries with chemicals, acid and/or similar substances (Article 116A of the Criminal Code), murder (Article 103 of the Criminal Code), kidnapping (Articles 169 and 170 of the Criminal Code) and any sexual offense (Articles 205-219C of the Criminal Code) are examples of crimes with a greater penalty than domestic violence that are aggravated when perpetrated against a family member or against a woman "for being a woman."
5.5.3 What is the result of a violation of an existing order for protection?

For a first-time offense, a fine of two to ten times the minimum wage will be imposed.[28] This fine must be paid within five days, but it might be replaced by arrest if the perpetrator is insolvent and unable to pay.

If failure to comply with protection measures is repeated within two years, the penalty will be arrest for between 30 and 45 days.

Finally, an aggressor that violates a civil protection order will be deprived from probation.[29]
5.5.4 What fines and other penalties are imposed besides incarceration and liberty restriction?

The aggressor may not approach or communicate with the victim and/or members of their family group.[30] In addition, other penalties may be imposed when necessary, such as not going to the same places as the victim, among others.[31]

The aggressor may be obliged to carry out re-education or retraining activities paid by the national government.[32]
5.6 Post-release restrictions

5.6.1 Does the law notify the victim of the offender's release from custody?
According to Article 5 of Law 294, concerned parties may request that the judge order any measure necessary to prevent, remedy or punish domestic violence that is considered appropriate, including a notification to the victim when the offender is released from custody.