Provisional measures in the acción de tutela

1. The text: article 7 of Decree 2591 of 1991

Article 7 empowers the tutela judge, from the filing until before judgment, on motion or of the court’s own accord, to order any conservatory or security measure aimed at protecting the right or preventing further harm. The statute speaks of necessity and urgency. It does not require a bond. It does not send the court to the General Code of Process. The measure is for the fundamental right and the immediate supremacy of the Constitution, not to secure a debt.

Order 2047 of 2024 (Justice Diana Fajardo Rivera, 12 December 2024) puts it this way: despite the expedited nature of the tutela, article 7 is a tool of effective judicial protection when the court sees the need and urgency of a temporary intervention, to prevent irreversible violation of fundamental rights or grave irreparable harm, especially to the public interest. The measure does not anticipate the judgment and may be reversed; it is therefore not a prejudgment.

2. What it is not: attachment under the General Code of Process

The Judicial School module on precautionary measures in the General Code of Process (Marco Antonio Álvarez Gómez, 2014) and Luisa María Melo Arias in the University of Nariño’s Codex review (2021) explain ordinary civil attachment: to keep the judgment from becoming illusory. Article 590 of the CGP governs unnamed civil measures, often with a bond. That is doctrine and ordinary procedure, labeled as such here. It is not the tutela regime. In tutela one does not attach land to collect. One orders, for example, that a treatment not be stopped, an essential service not be cut, an act not be carried out, a drug be delivered, or an eviction be stayed.

3. The Court’s three requirements (recent case law)

To prevent unreasonable use, the Court has required three conditions, restated in Order 1368 of 2024 (15 August 2024) and Order 2047 of 2024, with SU-913 of 2009 and Orders 680 of 2018, 110 of 2020, and 259 of 2021 behind them.

First, apparent viability (fumus boni iuris): a possible factual basis and a reasonable legal basis. Certainty is not required; a minimum of verisimilitude is. Second, danger in delay (periculum in mora): a probable risk that, because of the time of the proceeding, the right or the public interest will suffer grave, irreparable, or irreversible harm. Third, proportionality: the measure must not inflict disproportionate harm on the party who bears it. If the first or the third is missing, the Court denies the measure even if delay is a concern (Order 1368 of 2024). The measure is exceptional. It is not ordered “just in case.”

4. When, by whom, and until when

It may be sought in the initial filing or during the case. The court may order it of its own motion when it sees a certain, imminent, and grave threat, especially for persons under special constitutional protection. It may issue from filing until the trial judgment; on review, the Court may order it under the same test. It may be modified or revoked if circumstances change (Order 049 of 1995).

5. How to ask for it in the papers

In a separate heading, not buried in the facts. Identify the right, the act or omission, and why ten days are not enough. Prove, with summary evidence, viability and risk: medical records, a cut-off notice, an eviction date. Propose a precise, reversible, proportionate order. Asking for everything, with no proof, is the surest way to get nothing. Asking for the least effective order, with proof, is how article 7 works.

6. How I can help, as a constitutional attorney

The provisional measure is won or lost in the first filing. My work is to decide whether the case needs it, to draft the chapter under the Court’s three-part test, and to attach the summary proof. I served as Judicial Procurator and as counsel to the Inspector General and the Attorney General. That does not guarantee the order. It does avoid asking for too much, or failing to ask when the right will not wait.

I handle these applications in Bogotá, Chía, Zipaquirá, Tabio, Medellín, Cartagena, Cali, and Tunja, and for foreign clients. Office in Usaquén, Avenida Calle 127 # 14-54, Office 610 A. WhatsApp +57 318 887 7711. Read first the article on what the tutela is; this text assumes that frame.

Sources

Decree 2591 of 1991, article 7. Constitution, article 86. General Code of Process, article 590 (contrast only). Constitutional Court, Order 2047 of 2024; Order 1368 of 2024; SU-913 of 2009; T-225 of 1993; T-760 of 2008. Botero Marino, Judicial School, 2009. Álvarez Gómez, Judicial School, 2014 (ordinary procedure). Melo Arias, Codex, University of Nariño, 2021 (doctrine). Bogotá Legal Secretariat, Manual of Tutela. Case-law Notebook no. 2, 2024.