REPUBLIC OF COLOMBIA
Constitutional Court
(Translated by Eunice Gibson, CSN Volunteer Translator)
ORDER
Reference: File # T-3.098.508
Matter: Order for a preliminary injunction in the civil rights action instituted by Fredy Antonio Rodríguez Corrales as legal representative of the Asociación Colombiana Horizonte (ASOCOL) against the Ministry of Agriculture and Rural Development and the Colombian Institute for Rural Development (INCODER)
Presiding judge:
GLORIA STELLA ORTIZ DELGADO
Bogotá, DC, July 22, 2015
Panel Five for Review of Civil Rights Actions in the Constitutional Court, made up of Justices Jorge Iván Palacio Palacio, Jorge Ignacio Pretelt Chaljub, and Justice Gloria Stella Ortiz Delgado, presiding, in the exercise of their constitutional and legal authority, and especially, in accordance with that which is established in Article 7 of Decree 2591 of 1991, issue the following order for preliminary injunctive relief in the instant civil rights action, based on the following:
FACTS AND PROCEEDINGS
• The plaintiff is the legal representative of ASOCOL, an association that is made up of a number of families displaced from the properties known as Potosí, Caño Negro, Los Bajos, San Simón, Venecia, María Isidra and San Miguel, which are part of the old Hacienda Bellacruz (now Hacienda La Gloria). Plaintiff instituted a civil rights action against the defendants, requesting the protection of their fundamental rights to life, to employment, to social security, to health and to a decent home for the members of the Association and their families. He asks that the court order the termination of the agrarian legal action for the recovery of vacant land wrongfully occupied filed by INCODER under Resolution 2294 of September 5, 2011 and that the vacant land be adjudged the property of the families that lived there before their displacement.
• In his complaint plaintiff relates that by means of Resolution 3949 of 1990 a suit for clarification of ownership was instituted. Later those properties were declared to be vacant by Resolutions 1551 of April 20, 1994 and 1125 of March 13, 1996, issued by the General Manager of the now defunct INCORA, as a result of the suit for clarification of ownership.
• Nevertheless, on the dates February 13 and 14, 1996, these families were displaced by the paramilitaries of the Héctor Julio Peinado Becerra bloc, commanded by Juan Francisco Prada Márquez, known as “Juancho Prada”, who confessed to the displacement in a procedure under the Justice and Peace law. He said the brothers Carlos Arturo and Francisco Alberto Marulanda Ramírez had hired him.
• The Marulanda family had registered the ownership of the properties in favor of two family companies: MR Investments and La Gloria Refrigeration that were acquired in 2008 by a Panamanian company, Dolce Vista Estate Inc. On October 7, 2010, that company turned the property over to a trust administered by Fiducafé. The Davivienda Fiduciary now owns Fiducafé. For its part, its fiduciary rights are controlled by MR Investments SAS, whose only stockholder at this time is the Panamanian corporation Hacienda La Gloria Agro-industrial Group, S.A.
• By means of Resolution 481 of 2013, INCODER decided the action for recovery of the wrongfully occupied vacant land, ruling that the properties Potosí, Caño Negro, Los Bajos, San Simón, and Venecia are wrongfully occupied.
• On several occasions, INCODER asked the Office for Registration of Public Records to register Resolution 1551 of 1994, which clarifies the ownership of the property, and Resolution 481 of 2013, which identifies the wrongfully occupied vacant lands in this country. In spite of that, the requests were returned without the requested registrations, for various reasons. By that action, in spite of the existence of actions by a government authority that made clear that the property belongs to the nation, and that determine that the properties have been wrongfully occupied, the registered title to those properties continues in the Davivienda Fiduciary insofar as it may affect third parties.
• By means of Resolution of 334 of February 19, 2015, the Assistant Director of Rural Properties at INCODER ruled that Resolution 03949, which started the clarification process, and Resolution 1551 of 1994, which clarified the ownership of these and other properties, had lost their effect. However, Resolution 334 made no ruling on Resolution 481 of 2013.
• In view of the foregoing, it is reasonable to conclude that at present Resolution 481 of 2013, ruling that the five properties that are the subject of the referenced proceeding are vacant lands belonging to the nation, is in effect. Because they are vacant lands, according to Article 65 of Statute 160 of 1994, such lands are not available for possession, but only for occupation by those who are subject to agrarian reform. However, those who occupy it at this time have been declared to be wrongful occupiers, precisely because they are not subject to agrarian reform, according to the applicable regulations.
• In addition, Section 2 of Resolution 334 of 2015 orders the initiation of a new clarification proceeding for the ownership of the properties.
• In spite of the foregoing, it is public knowledge that a group of more than 100 campesinos displaced from the Hacienda Bellacruz decided to renew occupation of the properties on June 30, 2015.
• Likewise, it is public knowledge that on the next day the Mobile Anti-Disturbance Squadron (ESMAD) of the National Police carried out an eviction order to put an end to the occupation by the campesinos, including children and pregnant women and some of them were injured by gunfire.
• These events are highlighted by the Adelfo Segundo Ramirez Marrugo Corporation, legal representative of another organization of people displaced from the Hacienda Bellacruz, called ASOCADAR according to a document received in the Secretariat of that Corporation on July 6 of this year. The document requests that the Court order another series of preliminary injunctions, such as: a) suspend INCODER’s Resolution 334 of 2015, b) order the Police authorities of the municipality of La Gloria to suspend any kind of Police action, c) order a number of entities to adopt measures for the consideration, reparation, and restoration to the victims of the eviction, d) adopt measures to prevent future attacks and repair the damages caused by the eviction, and e) order that the criminal and disciplinary responsibility for the eviction be investigated.
ANALYSIS
• Article 7 of Decree 2591 of 1991 provides that the Constitutional Court, when it considers it necessary and urgent to protect fundamental rights alleged in a civil rights action to be violated, has authority to suspend the application of a specific act that threatens or violates such rights, by means of a preliminary injunction.
• However, that may not be considered as a prejudgment of the case before the court, or as an indication of the direction that the court’s decision will take, as long as its purpose is to avoid permitting an eventual situation where fundamental rights of citizens are being violated while the court is deciding the merits of the case where constitutionality is at issue.
• Article 7 of Decree 291 of 1991 also allows the court to order, on its own motion or on the motion of a party, any measure that will preserve rights or any security aimed at protecting rights or to avoid the production of other damages as a result of actions that have been taken. The regulation cited provides as follows:
“Article 7. Preliminary injunctions to protect a right. Based on the presentation of the request, when the court expressly considers it necessary and urgent to protect a right, it may suspend the application of the specific act that threatens or violates it.
However, on the petition of a party or on its own motion, the court may cause the execution of an act or the continuing of its execution in order to avoid certain or imminent damage to the public interest. In every case the court may order steps it considers appropriate to protect rights and not make ineffective an eventual decision in favor of the petitioner.
The party against whom the injunction has been requested must be notified of the suspension immediately by the most expeditious means.
The court may also, on its own motion or at the petition of a party, order any measure to preserve and protect a right or to avoid additional damage as a result of what has happened, in conformity with the circumstances of the case.
The court may, on its own motion or at the petition of a party, to achieve an appropriate resolution, require at any moment the cessation of the authorization or other measures that are part of the preliminary injunction that was issued.
• As a result, the constitutional court must study very carefully the seriousness of the factual situation alleged and the evidence and indications present in the case, for the purpose of determining whether there are sufficient reasons to allow it to consider the need to order measures that permit the avoidance of irreparable harm, or to protect the fundamental rights of the parties until the court can make its final decision.
• In the case under consideration, Panel 5 for Review of Civil Rights Actions considers that, in accordance with the evidence furnished in this specific case, there are serious indications that permit us to delineate a possible threat or effect on the rights to life, to due process and to the land of the parties in this specific case.
• By virtue of Article 5 of Decree 747 of 1992, “In no case are Police authorities to order eviction of campesinos occupying the agricultural land on which there have been instituted by the Colombian Institute for Agrarian Reform prior to the filing of the petition, any administrative proceeding with regard to extinction of ownership rights, clarification of ownership, recovery of vacant land wrongfully occupied, defining boundaries of property belonging to the government or delimitation of shore land or communal pastureland.” (Emphasis added.)
• By virtue of said provision, the eviction of the campesinos could have been illegal. As demonstrated in Sections 7, 8, and 9 of the Facts and Proceedings of this decision, at this time it is reasonable to conclude that the resolutions that initiated and terminated the suit for recovery of wrongfully occupied vacant land are in effect, as Resolution 334 of 2015 made no express reference to them. For the sake of discussion it could be said that when the acts that initiated and terminated the suit for clarification of ownership became ineffective, that could be considered to be the lapse of the administrative acts that initiated and terminated the suit for recovery of the vacant lands. Nevertheless, in the first place, that did not happen, obviously, prima facie, because in spite of having lost effectiveness, the acts did not come from a lawsuit, and their effectiveness was only lost when the suit for recovery of the vacant lands was terminated.
• On the other hand, even if the decisions related to the suit for recovery of vacant lands lost their effect, the police procedure carried on July 1, 2015 against the campesinos could have been illegal, because Resolution 334 of 2015 commences a suit for clarification of the ownership of those lands and is prior to the complaint that originated the eviction order.
• The Constitutional Court in its Decision T-763 of 2012 (by Justice Jorge Ignacio Pretelt Chaljub) recognized that carrying out this kind of police operations when INCODER has commenced such agrarian cases violates the fundamental right to land for the campesino population.
• Article 7 of Decree 2591 of 1991 provides that the “ . . . court may also, on its own motion or at the request of a party, order any measure that preserves or will protect the right or avoid the production of other damages as a consequence of the acts carried out, as appropriate to the circumstances of the case.” (Emphasis added.)
• Even when the petitioner for the preliminary injunctive relief is not a party to the referenced case, and thus the Court cannot grant the petition, the Court still can order the relief on its own motion, and will do that to protect the rights to life, to physical integrity, to due process, and to land for the people who were displaced from the Hacienda Bellacruz.
IT IS ORDERED
First. –ORDERED that the inspectors and other police authorities of the municipalities of La Gloria, Pelaya and Tamalameque, in the Province of César cease carrying out police operations against the campesino population displaced from the Hacienda Bellacruz until the Court issues a final and binding judgment in this case.
Second, -ORDERED that the Police authorities cease carrying out any kind of harassment against that population, and on the contrary, protect the lives, physical integrity, due process and privacy of the people displaced from the Hacienda Bellacruz.
Fifth, – by the Court’s Secretariat, RELEASE the communications related to Article 36 of Decree 2591 of 1991.
Let notice be served, Let it be made public, So Ordered,
GLORIA STELLA ORTIZ DELGADO
Justice
JORGE IVAN PALACIO PALACIO
Justice
JORGE IGNACIO PRETELT CHALJUB
Justice
MARTHA VICTORIA SACHICA MENDEZ
Secretariat