By Adriana Abramovits, AGENCIA PRENSA RURAL, April 13, 2022
https://prensarural.org/spip/spip.php?article27888
(Translated by Eunice Gibson, CSN Volunteer Translator)
The book “Insurmountable Barriers? An Analysis of the Administrative Phase of Land Restitution” explains how the strategy for implementation of restitution has been characterized by the lack of transparency in areas that are key to understanding the functioning of the policy, the absence of compilation and analysis of information that would allow improvement in the agency response, and a set of rules that restrict access to the users of the system.
Land restitution is the right that the victims have to the return of their property when it was stolen or had to be abandoned because of the armed conflict. In the setting of the National Day of Memory and Solidarity With The Victims of the Conflict, we remember how the land restitution process in Colombia, which started operating on January 1, 2012, and will be in effect until June 10, 2031, still is not carrying out its promise to guarantee a more decent life for the victims.
The Law for Victims and for Land Restitution was created to guarantee complete reparation for more than 9 million Colombians who suffered the worst impacts of the violence in this country. It was to offer them damages, rehabilitation, and guarantees that there would be no repetition. The people who have the right to restitution are mainly owners or possessors of real property, or those who worked open lands who had been victims of land theft or who had been forced to abandon their property because of the armed conflict, starting with January 1, 1991.
According to the Unit for Restitution of Stolen Land, the agency attached to the Agriculture Ministry, the differential focus of land restitution has to do with the fact that the violence has not affected all of the victims in the same manner and, on the contrary, has done certain harms to every population depending on if they are women, boys, girls, older adults, or ethnic peoples. So therefore, the Victims Law extends extraordinary powers for guarantees to the victims belonging to indigenous peoples or communities, Afro-Colombians, blacks, raizales[1] and palenqueras.[2] However that coverage with a transformative perspective is far from being a reality.
In the book, “Insurmountable Barriers? An Analysis of the Administrative Phase of Land Restitution”, it’s explained how the strategy for implementation of restitution has been characterized by a lack of transparency in areas that are key to understanding the functioning of the policy, the absence of compilation and analysis of information that would allow improvement in the agency response, and a set of rules that restrict access to the users of the system. Proof of that is that only 20.1% of the petitions (26,940 of 130,605 claims for restitution filed) has progressed to the transitional justice state, that’s to say, before the judges and Justices in the specialty of land restitution. Of the 80% of the pending petitions, only 89 claims have been reviewed by a judicial authority, in a manner that’s not connected with the transitional justice system.
Besides that, in the first eight years of the implementation of the policy, the URT has failed to systematize the reasons for refusal to record the land in the register, and right now there is no effort—at least one known to the public—to help us explain that phenomenon. The URT can’t answer central questions such as what are the reasons for the existence of such a tremendous breach between the expectations of restitution and the cases actually handled; or why the majority of the petitions are rejected. That has aroused a lack of confidence by the citizens.
In the area of reparation and transformation after eviction or plunder, those results have not been what was expected either. Even though the policy of restitution has meant a unique opportunity for justice and recognition for thousands of rural families, this group represents a minority percentage, both of claimants and of rural inhabitants with evident needs for justice. There is still time and opportunity to change the direction.
Thanks to the extension of the law’s effect for ten more years, there is a regulatory framework that offers the institutional opportunity to correct this path. Nevertheless, so that these ten years don’t become a lost opportunity, it’s necessary to make important changes for the future, such as reviewing conscientiously what has been done up to the present.
If major modifications are not made to the way in which this policy is administered, the sensation that the victims have had no effective access to justice will be converted into an incontrovertible conclusion.
10 ideas for the transformation of the land restitution model:
- The URT must revise its policies, procedures, and the regulations that now exist, to adapt their content to a form that will better contribute to the accomplishment of the objectives of implementing a land restitution policy as an effective instrument of transitional justice, so as to guarantee truth, justice, and reparation for the victims.
- The URT must guarantee transparency and effective rendering of accounts at the macro and micro levels of the administration of the land restitution policy. That requires a commitment to the production of information and their analysis of how the policy is working. Both must be public and able to be questioned by external investigations.
- The URT must guarantee that there are channels for monitoring how decisions are made, and of the possibilities of creating immediate corrections under the principles of access to justice that are set forth in our law.
- The system of attention and reparation to victims must guarantee adequate legal assistance to people claiming land. This assistance must guarantee the certainty of independence and impartiality to the claimants.
- The Public Ministry, especially the Inspector General, must continue and redouble its efforts to monitor and follow up with the restitution policy and, especially, of the denials. The reports they produce must be public.
- The authorities (judges, Justices, and legal representatives of the Inspector General, must possess the knowledge and experience to apply effectively the principles found in Statute 1448 and any related constitutional jurisprudence. The URT attorneys must adopt litigation strategies that place the victims at the center of the litigation, and not the actions of the administration, as can happen normally in ordinary litigation.
- The URT must design a comprehensive strategy for review of the decisions that, up to now, have been rejections. Create a system that will permit the reasonable review of the possible problems that were presented throughout the implementation of the policy.
- Carry out regional analyses (even analyses based on the territorial directives) and timely analysis of the conduct and the causality for the rejections of registration of land ownership.
- The URT must reach for systems more expeditious and effective, so as to revoke those decisions and erase the rejections and the adverse consequences for the claimants, as fast as possible.
10.The Superior Judicial Council must carry out the steps necessary so that judicial officials in charge of deciding cases comply with applicable regulations of transparency, rendition of accounts, and access to information.
[1] The Raizal are an Afro-Caribbean people who live in the San Andrés archipelago.
[2] Palenquera is a Spanish-based Creole language spoken in areas near Cartagena and parts of Baranquilla.