What role do victims have in the investigation of a crime?

Some wonder about the role of victims within a criminal proceeding, what rights they have, and what actions they can take. Especially during the investigative stage of the process when victims see their requests frustrated due to the delay in the issuance of orders to judicial police by the Office of the Attorney General for the development of investigative activities, excusing themselves with a high workload or any other reason derived from the shortcomings of the judicial system in Colombia (such as the lack of investigators).

According to Law 906 of 2004 and the scope given to it by the Constitutional Court in C-209 of 2007, and according to the Criminal Chamber of the Supreme Court of Justice (SP 50948), the victim does not have the status of a party in a criminal proceeding but that of a special intervenor. Therefore, the victim has a lesser role than the defense and the Office of the Attorney General. However, victims have several powers and tools, granted especially by jurisprudential interpretations of the High Courts, that allow them to participate actively in the criminal process. Thus, the victim can participate in the process from the investigation phase and, therefore, can carry out some investigative activities and collect material evidence, physical evidence, and relevant information. In other words, although the victim is not a party in a criminal proceeding, they are considered as a special intervenor. Their role, therefore, is not to wait for "justice to be served" or for the "Office of the Attorney General to do something about it". On the contrary, the victim can support and collaborate with the Office of the Attorney General so that the investigation of a criminal conduct can be efficient and reasonably fast.

Taking the above into account, what investigative activities can the victim carry out? Firstly, these activities must comply with legal restrictions and must be conducted while respecting fundamental rights. For example, the victim cannot conduct a raid, intercept communications, or conduct surveillance and monitoring of individuals, as indicated by the Criminal Chamber of the Supreme Court of Justice (SP 50948) and the law. However, the victim can carry out other investigative activities such as a selective search in databases.

Selective searches in databases are regulated by article 244 of the Criminal Procedure Code, which states that "the judicial police, in the course of their investigative activities, may carry out comparisons of data recorded in mechanical, magnetic and similar databases." While it is true that the law expressly refers to the judicial police, this does not prevent the victim from carrying out this investigative activity, especially when the High Courts have allowed it to do so (C-1154 of November 15, 2005, Court Order of December 7, 2011, Rad. No. 37596, SP 50948, among others). Now, this measure allows obtaining reserved information from the investigated person if it is necessary, suitable, useful, and proportionate to the infringement of the fundamental right to privacy and seeks to fulfill the obligation imposed on the Office of the Attorney General by article 250 of the Constitution: to investigate facts that have the characteristics of a crime.

Selective searching in databases allows obtaining confidential information from the person being investigated that he/she would not normally voluntarily provide to the Office of the Attorney General. For example, in the case of a person being investigated for alleged commission of the crime of illicit enrichment of private individuals, financial information from the investigated party may be required to determine the traceability of their funds. Additionally, this investigative activity has the advantage that, when obtaining prior authorization from a Judge of Guarantees to carry out this investigative diligence, there is no need to call the defense because the criminal investigation is confidential (unless the defense is already aware of the criminal investigation).

 Following the example mentioned, if the victim needs to carry out a selective search in databases to obtain financial information from the defendant, they must first request prior legal control. This involves going to a Judge of Guarantees to authorize the required investigative activities. If the Judge grants prior legal control, the victim will have 30 days, extendable for the same period (which applies before the formulation of charges, then only 15 days), to carry out these activities where they must obtain a response from the third parties who are contacted. Once the Judge legalizes the victim's work order, they must make the corresponding request to the entities, attaching the Judge's authorization. Finally, when the victim receives a response from the contacted third parties, they will have 36 hours to return to a Judge of Guarantees to carry out subsequent legal control so that the Judge can determine if the collection of information was legal. Once the victim has obtained and legalized the information, it is necessary for them to coordinate with the Office of the Attorney General in charge of the investigation to collect the information obtained to avoid affecting the chain of custody and thus be able to use this evidence in court through the prosecutor's office.

It is worth mentioning that in both the prior and subsequent hearings, the Office of the Attorney General in charge of the investigation must appear to respond to the victim's request and the legalization of the information obtained. On the other hand, if necessary, it is also possible for the Office of the Attorney General to carry out a selective search in databases hearing during the investigation.