Law is approved that legalizes armed usurpation of lands


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Series on the rights of the victims and the application of Law 975. Bulletin No 26

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Law is approved that legalizes armed usurpation of lands

  1. 1. COMISIÓN COLOMBIANA DE JURISTAS Organización no gubernamental con estatus consultiv o ante la ONU Filial de la Comisión Internacional de Juristas (Ginebra) y de la Comisión Andina de Juristas (Lima) PERSONERÍA JURÍDICA: RESOLUCIÓN 1060, AGOSTO DE 1988 DE LA ALCALDÍA MAYOR DE BOGOTÁBulletin No 26: Series on the rights of the victims and the application of Law 975 Law is approved that legalizes armed usurpation of landsOn January 8, 2008, Law 1182 “through which a special process is established forregularizing real estate property” was sanctioned. The law was approved after thecorresponding bill was sent to Congress on three different occasions.1The law establishes a special procedure, with very brief time limits, to regularize flawed orincomplete title deeds of properties of less than half a hectare in the urban sector, and ofless than 10 hectares in the rural sector, which means legalizing land and home ownershipunder very lax procedures.The special procedure created by the regularization law does not offer sufficient guaranteesso that people who have been victims of forced displacement can express their oppositionwithin the process. This would be tantamount to the legalization of usurpation, since thelaw makes it easier to grant title deeds in the name of those having committed human rightsviolations and breaches of humanitarian law with the purpose of displacing the peasantsfrom their lands and occupying them marginally or exploiting them through resettlement.The Colombian Congress approved the law in spite of the fact that various sectors ofsociety had complained that it goes against the right to land and to the restitution of theproperty of the displaced population. The legislators disregarded those arguments andignored the fact that the legal framework of the negotiations with the paramilitary groupsdoes not guarantee the rights to truth, justice, and reparation. With regard to this last right,the paramilitary groups have returned only a minimal part of the goods they usurpedthrough armed violence.In the opinion of the Colombian Commission of Jurists, the most worrying aspects of thelaw of regularization of the title deeds of real estate property are the following:1. It disregards the lack of registration of the property of the displaced population*The European Union supported the first phase of this project, between July and December of 2006, during which thisseries of information bulletins was begun and the first twelve numbers published, available on the web page. The presentpublication has been prepared under the auspices of the Canadian government, and its content is the sole responsibility ofthe Colombian Commission of Jurists. In no way should it be thought to reflect the point of view of the European Unionor of the government of Canada.1 Bills presented under registration numbers 230 of 2004-Senate; 319 of 2005-Chamber of Representatives;and 102 of 2006-Chamber – 247 of 2007-Senate. Calle 72 Nº 12-65 piso 7 PBX: (571) 3768200 – (571) 3434710 Fax: (571) 3768230 Email: Website: Bogotá, Colombia
  2. 2. National legislation foresees the adoption of measures to protect rural property abandonedby the displaced population. Abandoned urban property is not legally protected.There are serious omissions in the individual protection accorded to rural real estateproperty abandoned by the displaced population, which is activated at the request of eachdisplaced person. In 2006, the Colombian Institute for Rural Development – Incoder inSpanish – which took over the functions of the former Colombian Institute for AgrarianReform – Incora - , began to keep a registry of the abandoned holdings, a responsibility thathad been assigned to Incora ever since Law 387 was approved in 1997. 2This procedure of individual protection has had a very limited application. According toinformation on the Social Action Program for the Protection of Land Property provided toUNHCR, as of December of 2006 only 32% of the protection requests had been processedand 5% of land properties had been the object of protective measures. An effective form ofprotection for the owners of abandoned property, which consists in the annotation of thereal estate registration number, did not exceed 15% of the displaced persons who exercisedthis right, and fewer than 15% of the property owners have actually achieved the effectiveprotection of their properties. 3.The procedure for collective protection foreseen in Decree 2007 of 2001 has also beenrarely applied. This procedure covers the properties of a given area once the Municipal orDepartmental Committees for the Care of the Displaced Population issue a declaration of2 Numeral 1 of Article 19 of Law 387 of 1997 assigned to Incora the function of “registering the rurallandholdings abandoned by persons displaced by violence and inform the competent authorities so they mayproceed to prevent any conveyance or transfer of the title deeds of such property when such action is takenagainst the will of the holders of the respective rights.”3 United Nations High Commissioner for Refugees – UNHCR -, Balance de la política pública de prevención,protección y atención al desplazamiento interno forzado en Colombia agosto 2002 – agosto 2004(Assessment of Public Policy of Prevention, Protection, and Attention Regarding Forced InternalDisplacement in Colombia, August 2002 – August 2004) Bogotá, December 2004, page 161. 2
  3. 3. imminent displacement or of imminent risk of displacement.4 UNHCR has pointed out that“of the 15 departments where the most abandoned lands have been registered, only in sixof them have such declarations been issued.” 5 According to that U.N. agency, since theexpedition of the above mentioned decree in 2001, only 61 municipalities in the country –the equivalent of 6.4% of all municipalities that dispel displaced persons – have issued sucha declaration, but Incoder did not include it in the Single Register of Real EstateProperties.6Another measure affecting negatively the protection of properties abandoned by thedisplaced population is the transfer of the responsibility for registering such properties fromIncoder to the Superintendence of Public Notaries and Registry (Superintendencia deNotariado y Registro), ordered by Law 1152 of 2007, which approved the RuralDevelopment Statute.Additionally, this Statute weakened the protective capacity of Decree 2007 of 2001 since,in its Article 128, it establishes that the report on rural properties included in declarations ofimminent risk or of the occurrence of the initial events originating displacement, andregistering the right of ownership and the basic characteristics of the real estate properties,will no longer be sufficient proof of ownership, tenancy or occupancy by the displacedpersons.2. It does not foresee any effective mechanism for the protection of the victims offorced displacement.4 Decree No. 2007 of 2001, “through which Articles 7, 17, and 19 of Law 387 of 1997 are partially regulatedconcerning the timely assistance to the rural population displaced by violence, in the context of voluntaryreturn to their place of origin or their resettlement somewhere else, and measures are adopted tending toprevent this situation,” in its Article 1 establishes the declaration of imminence of risk of displacement or offorced displacement in an area in order to limit the conveyance or transference of any title deed of ruralproperty. It also establishes de responsibility of Municipal Mayors, Rural Judicial Procurators, Heads ofSection of the Geographic Institute Geográfico Agustín Codazzi, Registrars of Certified Instruments, andRegional Managers of Incoder, who must present to the Municipal, District or Department-level Committeesfor the Attention of the Displaced Population a report on rural properties existing on the date of the of theDeclaration of imminence of risk or occurrence of the first acts that produced displacement. Such a report,which must elucidate the legally established title holders, once it is approved by the Committee, constitutedsufficient proof for the displaced persons to guarantee their status as owner, tenant, or occupant.5 UNHCR, quoted above in Note 3, pages 157 and 158.6 Ibid., pages 158 and 159. 3
  4. 4. As the Vice-minister of the Interior admitted in Congress on August 15, 2007, “... the billto regularize real estate property is not aimed at benefiting the displaced population… Notin the least! ” 7The law disregards the fact that the women, the owners, the occupants and tenants whohave been forcibly displaced face additional difficulties to have their rights identified andincluded in the Single Register of Real Estate Properties.Articles 1 and 10 of the law, which exclude from the special process properties acquiredthrough violence, forced displacement or usurpation, do not constitute an effectiveguarantee of protection of the rights of displaced persons.The above-mentioned articles establish that the burden of proof falls upon the victims ofsuch misconduct, who must demonstrate that they were the occupants and users of the realestate, which is even harder to prove for those who have no title deeds – especially forwidows and women heads of households.3. It offers no guarantees to the displaced population opposed to the regularization.The law does not foresee any effective mechanisms allowing the victims of forceddisplacement to express their opposition to the regularization process. The proceeding ofjudicial inspection of the property is the only opportunity that the victims will have to stateverbally their objections relating to the property, ownership, forced displacement, action byfrontmen or any other form of violence or deceit.Given the extreme vulnerability and risk at which the victims find themselves, they willhave no guarantees of security to oppose those who seek to benefit from the regularizationof ownership, since the exercise of their right of defense implies participating inproceedings that take place in the municipality they were forced to flee from, where thesupposedly demobilized paramilitaries are still present and continue to violate human rightsand exert pressure on the decision of local authorities.The displaced population will find it difficult to express their opposition to theregularization process due to the insufficient publicity foreseen in the law and thegeneralized under-registration of abandoned properties mentioned in Paragraph 1 of thepresent document.7 Declaration by the Vice-Minister of Justice, Dr. Guillermo Reyes, during his intervention at the publichearing convoked by the First Commission of Chamber of Representatives in the context of the debate on Bill102 of 2006-Senate, 247 of 2007-Chamber, “through which a special procedure is established for theregularization of title deeds of real estate property.” Hearing carried out on August 15, 2007. 4
  5. 5. 4. It reinforces impunity of crimes committed by paramilitary groups and is contrary to the right of the victims to reparation.Until December of 2007, the accounts of the Reparation Fund, created by Law 975 of 2005,report the handover by the paramilitaries of a total of 4,754.2 hectares of rural propertiesand five urban real estate objects,8 which is equivalent to between 0, 07 and 0, 18 percent ofthe lands abandoned by the displaced population.9The law regularizing real estate property title deeds is contrary to the Basic principlesregarding the right of victims of manifest violations of international human rights normsand serious breaches of humanitarian law to lodge petitions of redress and obtainreparations, which establish, among other obligations of the states, that of “[A]doptinglegislative and administrative measures, and other appropriate steps to prevent theviolations; [p]rovide the victims effective resources, including reparation.”10 The lawviolates the right to restitution recognized by said Principles and by the Principles on therestitution of homes and patrimony of refugees and displaced persons,11 due to the fact thatit is a mechanism that makes it easier to legalize the plunder of the patrimony of the victimsof displacement, in addition to the absence of implementation of the legal mechanisms forthe protection of the property of the displaced population and to the fact that theparamilitary groups, supposedly demobilized, have not handed over the property theyusurped through armed violence.Likewise, the law ignores the concerns of the Special Representative of the United NationsSecretary General on the human rights of internally displaced persons, who warned aboutthe importance of “addressing rigorously the question of the appropriation of lands bythird parties during the displacement of the original population.”12 The law disregardsalso the recommendation by the Special Representative to, among other measures, declarevoid all the title deeds of the lands acquired under duress, preventing all transactions of8 Fund for the Reparation of the Victims, administered by Social Action, consulted January 17, 2008 in en http// Taking as reference the estimates by the Comptroller’s Office of 2.6 million hectares abandoned by thedisplaced population until 2005, the land properties handed over by the paramilitaries until December 14,2007, make up 0.18% of that area. The land handed over by the paramilitaries amounts to 0.07% of the 6.8million hectares abandoned until 2005, according to the Social Action Project for the Protection of Property ofthe Rural Displaced Population.10 United Nations, Resolution 60/147 approved by the General Assembly on December 16, 2005, Annex,Basic principles regarding the right of victims of manifest violations of international human rights norms andserious breaches of humanitarian law to lodge petitions of redress and obtain reparations Resolution 60/147approved by the General Assembly on December 16, 2005, A/RES/60/147, March 21, 2006, par.3.11 Human Rights Commission, 57th Period of Sessions, Principles on the restitution of homes and patrimonyof refugees and displaced persons, E/CN.4/Sub.2/2005/17, June 28, 2005.12 United Nations, Report presented by the Representative of the Secretary General on the human rights of theinternally displaced, Mr. Walter Kaelin, Mission to Colombia, Human Rights Council, Fourth Period ofSessions, Topic 2 of the provisional agenda, A/HRC/4/38/Add.3, January 24, 2007, par. 54. 5
  6. 6. such lands, and to rule that those who aspire to gain access to the benefits of Law 975 of2005 must declare “the whole truth, including information on the displacements they havecaused and the lands and properties they confiscated during their activities, as well as thenames of the persons they transferred them to in case they did not acquire them forthemselves.” 13The law overlooks also the jurisprudence of the Constitutional Court with regard to therights of the victims of displacement to truth, justice, and reparation, a tribunal which, inOctober 2007, by means of its Sentence T-821 de 2007,14 ordered that measures be taken toguarantee the rights to possession and restitution of the property of the displacedpopulation.Likewise, the law reinforces the set of legislative reforms promoted by the government thatviolate the right to the land, such as the National Development Plan, the RuralDevelopment Statute, and the Agro-Income Security Program, all of which contribute tolegalize illegal possession by paramilitary groups, develop agro-industrial activities carriedout on usurped lands, and promote impunity of the crime of forced displacement.An indispensable step toward complying with the Colombian state’s obligations withrespect to the rights of the victims and overcoming displacement is the implementation ofpolicies which effectively fulfill the right to restitution of lands of the displaced population.To that end, it must apply the Principles on the restitution of homes and patrimony ofrefugees and displaced persons, which are part of the Constitution and establish, amongother obligations, that “[T]he states must not approve or enforce laws that undermine therestitution process, such as laws of arbitrary abandonment or limitation that, for any givenreason, are discriminatory or unfair.” 15The Colombian state’s disregard of its international obligations, evident in the approval ofthe law for regularizing ownership of real estate property, seriously compromises itsresponsibility, and, together with Law 975, contributes to generate impunity forparamilitaries, to the detriment of the most vulnerable population groups for whom the1991 Constitution preserved a special treatment.Bogotá, March 13, 2008For more information, please contact Gustavo Gallón-Giraldo, Director of the CCJ, at Tel. (571) 376 8200, Ext. 115.13 United Nations, quoted supra in Note 10, par. 80.14 Constitutional Court, Sentence T-821 de 2007, M.P. (e): Catalina Botero Marino.15 United Nations, Principles on the restitution of homes and patrimony of refugees and displaced persons,adopted by the Sub-commission on the Promotion and Protection of Human Rights through Resolution2005/21 of August 11, 2005, Principle No. 19. 6